MEE Rules

Question 1

A federal court has SMJ under federal question jurisdiction if… (20.4%)

Answer 1

…the complaint alleges a claim that arises under federal law.

Well-Pleaded Complaint Rule. The federal question MUST be presented on the face of the plaintiff’s complaint. Raising a defense or filing a counterclaim under federal law does NOT trigger federal question jurisdiction.

Question 2

A federal court has SMJ under diversity jurisdiction if… (33.3%)

Answer 2

1. Complete Diversity is present – every citizenship represented on the plaintiff’s side of the case must be different than EVERY citizenship represented on the defendant’s side of the case; AND
2. The amount in controversy (AIC) exceeds $75,000.
   (a) A claim for injunctive relief may be valued by the benefit to the plaintiff (harm to P if injunction not imposed) or the cost of compliance for the defendant.
   (b) Aggregation by one P: One plaintiff can aggregate all of her claims against one defendant to meet the AIC requirement. One plaintiff can also aggregate all of her claims against multiple defendants if the defendants are jointly liable.
   (c) Aggregation by multiple Ps: Generally, each plaintiff’s claim must meet the AIC requirement separately (unless supplemental jurisdiction applies).

Note: A federal court does NOT have diversity jurisdiction for probate actions and domestic relation matters (e.g., divorce, child support/custody, etc.)

Question 3

How is citizenship determined for individuals? Corporations? Unincorporated associations? Class actions? Executors? (18.5%)

Answer 3

1. Individuals. For individuals, citizenship is determined by the individual’s state or country of domicile (i.e., the place of residence where the individual intends to remain indefinitely). An individual can only have one domicile at a time.
2. Corporations. Corporations hold dual citizenship for diversity purposes:
   (a) The state or country of incorporation; AND
   (b) The state or country of its principal place of business (i.e., the “nerve center” – usually where corporate headquarters are located).
3. Unincorporated Associations. Unincorporated associations and partnerships (e.g., unions, trade associations, partnerships, and limited partnerships) are considered citizens of every state of which its members are citizens.
4. Class Actions. For class actions, the citizenship of each named party in the class who are suing counts for diversity purposes. Class members that are not named may join without regard to citizenship.
5. Executors. Federal law provides that for diversity purposes, an executor is deemed to be a citizen only of the same state as the decedent.

Question 4

Supplemental jurisdiction: What is it? When may courts reject it? (14.8%)

Answer 4

Supplemental jurisdiction allows a federal court with valid SMJ over a case to hear additional claims over which the court would NOT independently have jurisdiction if ALL the claims constitute the same case or controversy. Claims constitute the “same case or controversy” if they arise out of a common nucleus of operative fact (meaning all the claims arise out of the same transaction or occurrence).

Courts have discretion to reject supplemental jurisdiction if:

a) The claims are complex or predominate the lawsuit;
b) The federal law claims are dismissed; or
c) There are any other compelling reasons to decline jurisdiction.

Question 5

Supplemental jurisdiction in federal question cases (14.8%)

Answer 5

A federal court sitting in federal question jurisdiction may hear a pendent state law claim under supplemental jurisdiction if the state law claim arises out of the same transaction or occurrence as the federal law claim. This includes cross-claims as well as claims that involve the joinder or intervention of additional parties over which the court would not otherwise have jurisdiction (called “pendent party” jurisdiction).

For example: P sues D for copyright infringement (federal law) and breach of contract (state law). A federal court may hear the breach of contract claim IF the breach arose out of the same transaction or occurrence as the copyright infringement claim.

Question 6

Supplemental jurisdiction (Diversity) (14.8%)

Answer 6

Plaintiffs’ Claims Against Defendant: A federal court sitting in diversity jurisdiction has supplemental jurisdiction over additional claims that arise out of the same common nucleus of operative fact as the original claim. This includes:

(1) the original plaintiff’s additional state-law claim against defendant, as well as
(2) an additional plaintiff’s state-law claim against defendant, so long as it does not destroy diversity.

A court sitting in diversity has supplemental jurisdiction over claims that arise out of the same CNOF. This includes compulsory counterclaims automatically, as well as crossclaims if they have the same CNOF. Permissive counterclaims, however, must independently satisfy the requirements for diversity jx.

Counterclaims [commonly tested]:

(1) Compulsory Counterclaims. A compulsory counterclaim is a counterclaim (usually the defendant countersuing the plaintiff) that arises out of the same transaction or occurrence as the original claim filed. A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a compulsory counterclaim.
(2) Permissive Counterclaims. A permissive counterclaim is a counterclaim (usually the defendant countersuing the plaintiff) that does NOT arise out of the same transaction or occurrence as the original claim filed. A permissive counterclaim can only be heard if it independently satisfies diversity jurisdiction (e.g., complete diversity is present + amount in controversy exceeds $75,000).

Cross-Claims [commonly tested]: A cross-claim is a claim filed by a plaintiff against another plaintiff or by a defendant against a co-defendant. A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a cross-claim if the cross-claim arises out of the same transaction or occurrence as the original claim.

Question 7

Removal (requirements, when permitted) (7.4%)

Answer 7

Removal allows the defendant to move a case from state court to federal court if the case could have been brought originally in federal court.

1. Removal permitted. Defendant may remove so long as the federal court can exercise SMJx (federal question or diversity) over the case. (Note that removal itself does NOT raise PJx issues.)
   (a) Diversity Cases. Removal in diversity cases is only proper if no defendants are citizens of the state in which the claim was originally filed.
2. Removal procedure. Removal must be sought:
   (a) By the Defendant;
   (b) With the consent of all Ds, if applicable; AND
   (c) Within 30 days of learning the grounds for removal, e.g. receiving the complaint (however, the defendant cannot remove his case after one year from the commencement of the action, unless the plaintiff acted in bad faith to try to make the case non-removable).

Question 8

Personal jurisdiction (14.8%)

Answer 8

A court MUST have personal jurisdiction in order to adjudicate the rights and liabilities of a defendant.

STEP 1: If any of the following four “traditional bases” are satisfied, the court will have personal jurisdiction over the defendant:

(1) Domicile. Domicile will be satisfied if the defendant is domiciled in the forum state. If the defendant is a corporation, it must be “at home” in the forum state (e.g., state of incorporation + principal place of business).
(2) Presence. Service of process on the defendant while he is physically and voluntarily present in the forum state (doesn’t count if the defendant was in the state only to answer a summons or was brought there by force or fraud, but some other reason, like attending a conference, counts for PJx).
(3) Consent. Out-of-state defendants may consent to personal jurisdiction. Consent can be express/by contractual agreement (e.g. forum-selection clause) or implied/by engaging in specific activity that the state has a substantial interest in regulating (e.g. driving on public roads).
(4) Waiver/Appearance. Unlike subject matter jurisdiction, lack of personal jurisdiction can be waived by the defendant. A defendant waives any objection to personal jurisdiction by substantial participation on the merits before raising the objection (e.g., making a general appearance).

STEP 2: If none of the traditional bases are satisfied above, personal jx may still be obtained by using a state long-arm statute. Constitutional due process requires that for a long-arm statute to give rise to personal jx, there must be sufficient contacts between the defendant and the forum state. Sufficient contacts, if they exist, may establish either specific or general personal jx.

(1) Specific jx exists if D has established minimum contacts through purposeful availment of the benefits of the forum state (e.g., using state highways), and such contacts gave rise to P’s claim or are closely related to it. It must have been reasonably foreseeable that the D could be “haled into court” in the forum state based on his activities there.
(2) General jx exists if D has continuous and systematic contacts with the forum state so substantial that the D is essentially “at home” (i.e. D’s domicile). Note that when general jx is present, the D can be sued on ANY claim (even if the claim is unrelated to the D’s contact with the forum state).

STEP 3: The exercise of jx must NOT offend traditional notions of fair play and substantial justice. Courts weigh the following factors to determine fairness of the forum jurisdiction in regard to the defendant:

(a) Convenience for (or burden on) the defendant;
(b) Whether the forum state has a legitimate interest in providing redress;
(c) Whether the plaintiff’s interest in obtaining relief is proper;
(d) The interstate judicial system’s interest in efficiency; and
(e) The shared interest of the several states in furthering social policies.

Compare with Themis:

1) Minimum contacts
a) Purposeful availment (reasonably foreseeable to be sued in the state)
b) Relatedness (defendant’s conduct in relation to the action)
i) Specific Jurisdiction (action arises out of the defendant’s conduct)
ii) General Jurisdiction (defendant is essentially “at home” in jurisdiction)
(a) Corporationis“athome”whereincorporatedandwhereitsprincipalplace of business is located
2) Fairness (Fair play and substantial justice)

Question 9

When does personal jurisdiction exist in stream of commerce cases? In Internet cases? (13%)

Answer 9

Stream of Commerce Cases: Generally, there will be specific jurisdiction over a defendant if the defendant:

(1) Places a product in the stream of commerce in the forum state; AND
(2) Commits some other act to show intent to serve the forum state.

Internet Cases: Generally, internet cases involve either passive or active websites.

(1) Passive Websites. A passive website is a website that is used for information purposes rather than online sales and commerce. Generally, the maintenance of a passive website, without more activity in the forum, is insufficient for general jurisdiction. However, it may be sufficient for specific jurisdiction if the defendant is targeting readers in the forum.
(2) Active Websites. An active website is a website that is used for online commerce to make sales. The maintenance of an active website may be sufficient for general jurisdiction if the defendant is conducting significant business in the forum state such that the defendant is at home in the forum.

Question 10

Service of process and notice (server requirements; deadline)

Answer 10

A civil action is commenced by filing a complaint with the court. After the plaintiff files a complaint, a summons MUST be served on the defendant with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within 90 days after the complaint is filed with the court. Any person who is at least 18 years old and NOT a party to the action may serve a summons and complaint.

Question 11

How is an individual in the U.S. served with process? (7.4%)

Answer 11

An individual within a judicial district of the United States may be served by:

(1) Delivering a copy of the summons and complaint to the individual personally;
(2) Leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; OR
(3) Delivering a copy of each to an agent authorized by appointment or by law to receive a service of process.

Question 12

How may a person in a foreign country be served with process?

Answer 12

Unless prohibited by the foreign country’s law, an individual in a foreign country may be served by:

(1) Delivering a copy of the summons and complaint to the individual personally;
(2) Using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; OR
(3) Other means not prohibited by international agreement, as the court orders.

Question 13

How may a corporation, partnership, or association be served with process?

Answer 13

A corporation, partnership, or association may be served by delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.

Question 14

Venue (proper; residency) (14.8%)

Answer 14

a) Venue. Venue determines the judicial district in which a lawsuit may be filed or commenced. Venue is proper in a judicial district where:
(1) ANY defendant resides, IF all the defendants reside in the same state;
(2) A substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is located; OR
(3) If there is NO district anywhere in the United States that satisfies (1) or (2), a judicial district in which ANY defendant is subject to personal jurisdiction.
b) Residence. For venue purposes, the rules for determining the defendant’s residence vary depending on the type of party involved:
(1) Individuals. An individual is deemed to reside in the judicial district where he is domiciled.
(2) Business Entities. A business entity is deemed to reside in any judicial district where the entity is subject to personal jurisdiction with respect to the action in question.
(3) Foreign Defendants. A defendant who is NOT a resident of the United States, whether a U.S. citizen or an alien, may be sued in ANY judicial district.
c) NOTE. The rules to determine residence for venue purposes are different than the rules to determine citizenship for jurisdiction purposes.

Question 15

Change of venue (proper or improper; choice of law; forum selection clauses) (9.3%)

Answer 15

a) Proper Venue. If venue is proper, the court may nonetheless transfer the case for the convenience of the parties or witnesses to any court where the case could have been originally filed, i.e., the transferee court must have valid SMJx + PJx + venue. (According to Themis, the court assesses whether the transfer to the new venue is in the interest of justice.)
b) Improper Venue. If venue is improper, the court MUST:
(1) Dismiss the case; OR
(2) Transfer the case to a venue in which the case could have been originally filed (i.e., the transferee court must have valid SMJx + PJx + venue).
c) Choice of Law. If a court transfers a case to another venue, the law that the transferee court must apply depends on whether the original venue was proper and the type of case involved.
(1) Diversity Cases.
(a) Proper Original Venue. If the transferor court had proper venue in a diversity case, the transferee court must apply the law that would have been applied in the district court that transferred the case (transferor court).
(b) Improper Original Venue. If the transferor court had improper venue in a diversity case, the transferee court must apply the choice-of-law rules of the state in which it is located (choice-of-law rules of transferee court’s state).
(2) Federal Question Cases. In a federal question case, whether the original venue was proper or improper, the transferee court must apply the federal law as interpreted by its own federal court of appeals (transferee court’s federal CoA).
d) Forum-Selection Clauses. When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court held that a forum selection clause should be given “controlling weight in all but the most exceptional cases,” even if the clause is unenforceable under applicable state law.

Question 16

Complaint (required contents) (7.4%)

Answer 16

Complaint. The complaint is the first pleading filed by the plaintiff – it commences the lawsuit. A complaint MUST state:

(1) Grounds for subject matter jurisdiction;
(2) A short statement of the claim that shows the pleader is entitled to relief*; AND
(3) A demand for judgment for relief.

*Note: A complaint alleging mistake or fraud, or mental conditions, must state with particularity the circumstances giving rise to the claim, e.g., specifying the time, place, and nature of the alleged fraud.

Question 17

Pre-answer motion (possible defenses) (7.4%)

Answer 17

(a) After the complaint is filed, the defendant may file a pre-answer motion or respond with the answer. The pre-answer motion may raise any or all of the following defenses:
(1) Lack of subject matter jurisdiction;
(2) Lack of personal jurisdiction;
(3) Improper venue;
(4) Insufficiency of process;
(5) Insufficiency of service of process;
(6) Failure to state a claim upon which relief can be granted; AND/OR
(7) Failure to join an indispensable party under compulsory joinder.

Question 18

Answer (required contents; timing) (7.4%)

Answer 18

a) Answer. The answer MUST state:
(1) A specific denial or admission of each allegation in the complaint OR a general denial of all allegations with specific admissions if necessary (NOTE: a failure to deny an allegation constitutes an admission); AND
(2) Any affirmative defenses that the respondent has, or that defense is deemed waived.
b) Timing. The timing of the answer depends on whether a pre-answer motion is made:
(1) If no pre-answer motion is made, a defendant who is formally served must present an answer within 21 days after service.
(2) If a pre-answer motion is made, the responsive pleading must be served within 14 days after the court’s denial or postponement of the motion.

Question 19

How may a party amend a pleading, and what are the relevant deadlines? (5.6%)

Answer 19

A party may amend a pleading by right or by leave of the court:

(1) By Right. A party may amend a pleading once as of right within 21 days if no responsive pleading is required. If a responsive pleading is required, the party may amend within 21 days of whichever event is earlier:
(a) The service of the responsive pleading; OR
(b) Being served with a Rule 12(b) motion.
(2) By Leave of the Court. The court can permit an amendment to a pleading when justice so requires. Generally, a court will permit a proposed amendment if the proposed amendment:
(a) Is not subject to dismissal under Rule 12(b); AND
(b) Would NOT result in undue prejudice to the opposing party.

Question 20

Relation back doctrine (5.6%)

Answer 20

The relation back doctrine determines whether an amendment to a pleading will relate back to the date of the original pleading. This can be important for statute of limitations purposes.

(1) New Claim. If the pleading is amended to include a new claim or defense, the amendment will relate back to the date of the original pleading if the new claim or defense arose out of the same transaction or occurrence set out in the original pleading.
(2) New Party. If the pleading is amended to include a new party or changes the name of a party, the amendment will relate back to the date of the original pleading if:
(a) It asserts a claim that arose out of the same transaction or occurrence set out in the original pleading;
(b) The party to be brought in by amendment receives notice of the action within 90 days after the filing of the original complaint such that he will not be prejudiced in defending his case on the merits; AND
(c) The party to be brought in by amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity.

Question 21

Compulsory Joinder (Indispensable Parties) (7.4%)

Answer 21

A plaintiff MUST join an absent party or face dismissal of his lawsuit if:

(1) The court has personal jurisdiction over the absentee;
(2) The absentee’s presence would not destroy subject matter jurisdiction or venue; AND
(3) Either:
(a) Complete relief cannot be accorded among the other parties to the action without the absentee party; OR
(b) The absentee has such an interest in the action that a decision in his absence will impede his ability to protect the interest or leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Question 22

Permissive joinder (7.4%)

Answer 22

Parties MAY join as plaintiffs or be joined as defendants when:

(1) Some claim is made by each plaintiff and against each defendant that arises out of the same transactions or occurrences; AND
(2) There is a question of fact or law common to all parties.

Question 23

Interpleader (5.6%)

Answer 23

Interpleader allows a plaintiff or defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute.

a) By a Plaintiff. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though:
(1) The claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; OR
(2) The plaintiff denies liability in whole or in part to any or all of the claimants.
b) By a Defendant. A defendant exposed to similar liability may seek interpleader through a cross-claim or counterclaim.

Question 24

Motion for summary judgment (timing; when granted) (9.3%)

Answer 24

A MSJ may be filed at any time until 30 days after the close of discovery.

A MSJ must be granted if, from the pleadings, affidavits, and discovery materials on file, when viewing the evidence in the light most favorable to the nonmoving party, it appears that:

(1) No genuine dispute of material fact exists; AND
(2) The moving party is entitled to judgment as a matter of law.

Note: Summary judgment may be partial (e.g., limited to certain issues rather than the entire case). Denial of a MSJ is NOT appealable.

Question 25

Erie Doctrine (9.3%)

Answer 25

The Erie Doctrine is used to determine whether a federal court should apply its own federal law or the law of the forum state in which it sits. **Federal Question Jurisdiction:** Federal substantive and procedural law will control. **Diversity Jurisdiction:** Court applies state substantive law and federal procedural law. **Substance v. Procedure.** Examples of substantive law under Erie: a) A state law that alters the calculation of damages b) A state law regarding a statute of limitations c) State laws that create evidentiary privileges d) Choice of law issues Examples of procedural law under Erie: i) The proper court in which to bring an action; ii) The form of the action to be brought; iii) The sufficiency of the pleadings; iv) The effect of splitting a cause of action; v) The proper or necessary parties to an action; vi) Whether a counterclaim may be brought; vii) Venue; viii) The rules of discovery; ix) The right to a jury trial; x) Service of process; xi) The burden of proof; xii) Trial procedure; and xiii) The methods of enforcing a judgment. Example 1: In a federal case based on diversity jurisdiction, the federal law does not recognize physician-patient privilege. However, state law recognizes a physician-patient privilege. The court must use the state law and apply the privilege.

Question 26

What is a temporary restraining order? What is the permissible duration? What are the requirements to obtain one, and what are its required contents? (5.6%)

Answer 26

A Temporary Restraining Order (TRO) is a pre-trial injunction that preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction. **Duration.** A TRO commands a party to do or stop doing a specified action for 14 days or until a preliminary-injunction hearing, whichever occurs first. A TRO **may NOT last longer than 14 days unless good cause exists or the non-moving party consents**. **Requirements.** The party must show: 1) **Immediate and irreparable injury** would occur absent the TRO; and 2) An **effort was made to give notice** to the opposing side. (Alternatively, the party may give the reason why notice should not be required.) 3) Studicata: Same requirements as preliminary injunction (irreparable harm, balance of equities, success on the merits, public interest). **Notice.** The court may grant TRO without the opposing party present, but only if: (1) Specific facts in an affidavit or a verified complaint clearly show that **immediate and irreparable harm** will result to the movant **before the non-moving party can be heard in opposition**; AND (2) The movant’s attorney **certifies in writing any efforts made to give notice** to the non-moving party and the **reasons why it should not be required**. **Contents.** The TRO must contain: (a) the reasons why it was granted (b) a reasonable description of the prohibited or commanded acts, which must be made without reference to the complaint or another document (c) the specific terms (e.g., persons bound, penalties for noncompliance) If the TRO is ex parte (without notice), it must also: (a) contain date and hour issued (b) explain why injury is irreparable (c) explain why issued without notice (d) be promptly filed with clerk and entered into record

Question 27

What is a preliminary injunction and what are its requirements? (5.6%)

Answer 27

A preliminary injunction preserves the status quo of the parties until a final judgment on the merits can be reached. There are two types of preliminary injunctions: (1) **Prohibitory Injunction.** A prohibitory injunction prohibits or restrains a party from engaging in a specified behavior. (2) **Mandatory Injunction.** A mandatory injunction requires the defendant to engage in an affirmative act. Courts are **much more reluctant** to grant mandatory injunctions as opposed to prohibitory injunctions. **Requirements.** A plaintiff seeking a preliminary injunction must establish that: (1) She is likely to suffer **irreparable harm** if the preliminary injunction is not issued; (2) The **balance of the equities** tips in her favor (i.e. she is likely to suffer **greater harm than the defendant will** if the preliminary injunction is not issued); (3) She is **likely to succeed on the merits**; AND (4) The injunction is in the **best interest of the public**. **Notice.** The non-moving party **MUST be given notice** and an opportunity to oppose the preliminary injunction at a hearing before the court. **Contents.** Every order granting an injunction must: (1) State the reasons as to why it was issued; (2) State its terms specifically; AND (3) Describe in reasonable detail the act or acts restrained or required.

Question 28

What is a pretrial conference? (5.6%)

Answer 28

a) Rule 26(f) Conference. The parties must confer as soon as it is practicable to: (1) Consider their claims and defenses, the possibility of settlement, initial disclosures (see below), and a settlement plan; AND (2) Submit to the court a proposed discovery plan addressing the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required by the court. b) Additional pretrial conferences may be held to expedite the trial and foster settlement.

Question 29

What is the attorney work-product doctrine? (5.6%)

Answer 29

a) The work-product doctrine protects materials prepared by an attorney or a client (or their agent) in anticipation of or during litigation from discovery by opposing counsel. Such materials will NOT be protected from disclosure to opposing counsel IF: (1) The materials are otherwise unavailable; (2) There is a substantial need for the materials; AND (3) The materials cannot be obtained without undue hardship. b) However, a writing that reflects an attorney’s impressions, conclusions, opinions, legal research, or theories is NEVER discoverable. c) When a party withholds information she believes is privileged or protected by work- product, the party MUST make the claim expressly and describe the nature of the documents in a manner that will enable other parties to assess the applicability of the privilege or work-product doctrine.

Question 30

Rule 12(b) motions to dismiss (and associated timing) (5.6%)

Answer 30

A party may assert any or all of the following defenses by motion to dismiss: Lack of subject matter jurisdiction; (a) Timing. The defense of lack of subject matter jurisdiction may be raised at any time, even on appeal. Lack of personal jurisdiction; (a) Timing. The defense of lack of personal jurisdiction must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived. Improper venue; (a) Timing. The defense of improper venue must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived. Insufficient process; (a) Timing. The defense of insufficient process must be raised in a pre- answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived. Insufficient service of process; (a) Timing. The defense of insufficient service of process must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived. Failure to state a claim upon which relief can be granted; AND (a) Timing. The defense of failure to state a claim may be raised in a pleading, in a motion for judgment on the pleadings, or at trial. (b) 2-Step Analysis. Under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable or fails to allege facts sufficient to support a cognizable claim. In making this determination courts apply a 2-step analysis: (i) First, the court must identify and reject legal conclusions unsupported by factual allegations; THEN (ii) Second, the court should assume that the well-pleaded factual allegations are true and, drawing on the court’s judicial experience and common sense, determine whether the allegations plausibly give rise to the entitlement of relief. Failure to join an indispensable party under compulsory joinder. (a) Timing. The defense of failure to join an indispensable party may be raised in a pleading, in a motion for judgment on the pleadings, or at trial.

Question 31

Motion for judgment as a matter of law (5.6%)

Answer 31

a) A JMOL (formerly known as a “directed verdict”) may be filed by either party after the close of the nonmoving party’s evidence OR at the close of all evidence. b) The motion will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party. A JMOL is a prerequisite for the making of a renewed motion for judgment as a matter of law after the trial.

Question 32

Final judgment rule (5.6%)

Answer 32

The federal courts of appeals have jurisdiction over appeals from final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

Question 33

Collateral Estoppel (Issue Preclusion)

Answer 33

Collateral estoppel precludes the re-litigation of **_issues of fact or law_** that have already been necessarily determined by a judge or jury as part of an earlier claim. To bar an issue under collateral estoppel: (1) The issue sought to be precluded **must be _the same_** as that involved in the prior action (i.e., the facts relevant to the particular issue and the applicable law must be identical); (2) The issue must have been **_actually_ litigated** in the prior action; (3) The issue must have been determined by a **valid _final_ judgment on the merits**; AND (4) The determination of the issue must have been **_essential_ to the prior judgment**. **MNEMONIC: SAFE** Themis adds: The party against whom issue preclusion is asserted must have been a party in the prior lawsuit or represented in that lawsuit (a successor-in-interest)—must be fair for new plaintiff to assert same issue (prior law required a mutuality of parties).

Question 34

Res judicata (claim preclusion) (5.6%)

Answer 34

Res judicata provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action. To bar a claim under res judicata: (1) The original claim must have resulted in a valid final judgment on the merits; (2) The original and later-filed causes of action must be sufficiently identical (i.e., related to the same transaction or occurrence); AND (3) The claimant and the defendant must be the same (and in the same roles) in both the original and later-filed action, or privity exists between the parties in the original and later-filed action. NOTE. Res Judicata is limited to the parties and their privies; thus, a similar action by a different party would NOT be barred under res judicata.

Question 35

Rule 11 (3.7%)

Answer 35

Rule 11 establishes the standards that attorneys and individual parties must meet when filing pleadings, motions, or other papers, and provides sanctions for violations of the rule. (a) **Signature.** Under Rule 11(a), every pleading, written motion, and other paper filed with the court must be signed by at least one attorney of record, or by a party personally if unrepresented. The paper must state the signer’s address, email address, and telephone number. **The court MUST strike an unsigned paper unless the omission is promptly corrected** after being called to the attorney’s or party’s attention. (b) **Representations to the Court.** Under Rule 11(b), by presenting to the court a pleading, written motion, or other paper, the signing attorney or unrepresented party certifies that to the best of her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (i) the paper is not being presented for any **improper purpose**, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (ii) the claims, defenses, and other **legal contentions are warranted** by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (iii) the **factual contentions have evidentiary support** or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (iv) the **denials of factual contentions are warranted** on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Question 36

Motion for Rule 11 sanctions (3.7%)

Answer 36

Before a party may seek sanctions under Rule 11, the party must serve on the opposing party a motion, separate from any other motion, that describes the specific conduct that allegedly violated the rule. The opposing party must be given 21 days to withdraw or correct the challenged pleading. If the 21-day "safe harbor" period passes, and the pleading is not corrected, the party seeking sanctions may file the motion with the court.

Question 37

Rule 11 penalties (3.7%)

Answer 37

After notice and a reasonable opportunity to respond, the court (on motion or on its own) may issue sanctions for failing to comply with the Rule 11 requirements. The sanctions may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation. The court has considerable discretion in imposing sanctions, but the sanctions should have the purpose of **deterring the misconduct in the future**. Note: The court is **NOT permitted to impose a monetary sanction against a represented party** for asserting an unwarranted legal contention; such a sanction may only be imposed upon the party's attorney or the attorney's law firm. (However, there is some authority for imposing such sanctions on a represented party who knew, or should have known that the claim he asked his lawyer to pursue was legally and factually baseless.) Note: Absent exceptional circumstances, **a law firm must be held jointly responsible** for a violation committed by its partner, associate, or employee.

Question 38

Discovery and limitations

Answer 38

**Scope of Discoverable Information.** Generally, discovery is permitted with regard to any **non-privileged** matter that is: (1) Relevant to any party’s claim or defense in the action; AND (2) Proportional to the needs of the case. **Limitations on Discovery.** On motion or on its own, the court is required to limit the frequency or extent of discovery if the court determines that: (1) The discovery sought is **unreasonably cumulative** or can be obtained from **some other source** that is more convenient or less expensive; OR (2) The party seeking discovery had ample opportunity to obtain the information by discovery in the action. NOTE: Information within the scope of discovery **need not be admissible in evidence** to be discoverable.

Question 39

Spoilation of evidence and sanctions

Answer 39

Spoliation of evidence is the **negligent or intentional** destruction or significant alteration of evidence required for discovery. When litigation is reasonably anticipated, even if it has not yet been commenced, potential litigants in possession of potentially relevant evidence have a **duty to preserve** such evidence. Once a duty to preserve evidence is triggered, the party in possession of the evidence must take **reasonable measures to preserve** it. If a party has a policy in place that results in routine operations that may destroy evidence, such as electronically stored information, that party must nevertheless **affirmatively act to prevent the destruction or alteration** of such evidence. A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation. Sanctions Sanctions are authorized for spoliation of evidence **only if the information cannot be restored or replaced by additional discovery**. In determining sanctions, the court should consider the **prejudice** to another party and the **intent** of the party that failed to preserve the evidence. When retrieval of the information is possible, even if typically considered inaccessible due to cost of retrieval, a court may order it and assign the costs to the party who destroyed the evidence; no further sanctions may be imposed. If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order alternate sanctions against the wrongful party, limited to the court’s discretion of those necessary to cure any prejudice to the other party. If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation, then the available sanctions include (i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party; (ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or (iii) an entry of a default judgment against the party.

Question 40

Requirements for proper class action and certification (3.7%)

Answer 40

A class action is a type of suit where one of the parties is a group of people who are represented collectively by a member or members of that group (called “named parties”). A class action is proper if: (1) The class is so numerous that joinder of all members is impracticable; (2) There are questions of law or fact common to the class; (3) Named parties’ interests are typical of the class; AND (4) Named parties will adequately represent the interests of the absent members of the class Once the above four requirements are met, the class will be certified IF: (1) Separate actions would create a risk of inconsistent results or impair the interests of unnamed parties; (2) The defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; OR (3) Common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication.

Question 41

Pretrial conference sanctions (3.7%)

Answer 41

The court may direct counsel and unrepresented parties to appear for pretrial conferences (to expedite the action, foster settlement, etc.). The court may issue sanctions (including **dismissal of all or part of the action** or holding parties in **contempt of court**) if counsel or a party: (1) Fails to appear; (2) Fails to participate in good faith; OR (3) Fails to obey a pretrial conference order. **Dismissal of an action** is a severe sanction, and generally it is only appropriate when a party’s conduct is **serious, repeated, extreme, or otherwise inexcusable**.

Question 42

Collateral order doctrine (7.4%)

Answer 42

The doctrine of collateral order allows a party to appeal interlocutory rulings if the ruling decides a claim or issue: (1) That is separable from and collateral to the merits of the case; (2) Involves a serious and unsettled legal question; AND (3) Would be effectively unreviewable if the court waited until final judgment to hear the claim or issue.

Question 43

Full faith and credit among federal courts (including errors in SMJx)

Answer 43

Under the U.S. Constitution, state courts are required to give full faith and credit to valid judgments of other states. State courts are likewise required to treat federal judgments as those judgments would be treated by the federal courts. The issues decided in one court cannot be re-litigated in another, and the state in which enforcement is sough must honor the judgment of the federal court. Therefore, a party against whom enforcement of a judgment is sought may collaterally challenge the original state judgment based on lack of subject matter jurisdiction **only if the jurisdictional issues were not litigated or waived in the original action** (i.e. if there was no final judgment as to the issue; a judgment becomes final if no appeal is taken).