CivPro - Missed MBE Questions

Question 1

May P aggregate different claims against a single D to meet the amount in controversy requirement?

Answer 1

Yes. No requirement that the claims arise from the same transaction or occurrence

Question 2

When is supplemental jurisdiction appropriate?

Answer 2

When second claim arises from a common nucleus of operative fact

Question 3

In what federal districts is venue proper?

Answer 3

Where a substantial portion of the events took place or where any D resides (AT THE TIME THE ACTION IS FILED) if all reside in the same state

Question 4

When must D answer complaint?

Answer 4

21 days if served

If waives service, 60 days

Question 5

When may a court issue a TRO without notice?

Answer 5

Only when it is necessary to prevent irreparable injury that will occur before a preliminary injunction hearing can take place.

Notice of TRO hearing required unless P files affidavit establishing that irreparable injury will occur before D can be heard. Must show why notice should not be required or show what efforts P made to provide notice.

Question 6

When is a party entitled to costs/attorney’s fees/sanctions for the other party’s failure to provide complete discovery?

Answer 6

Party must successfully file a motion to compel and certify that the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention

Question 7

How can P voluntarily dismiss her case?

Answer 7

Before D’s answer: File notice of dismissal

After D’s answer: Court approval required. Court has discretion to grant dismissal on such terms and conditions as it deems appropriate. If a counterclaim is pending, there can be no dismissal over D’s objection

Question 8

Under what circumstance must a no-show D be provided notice of a request for default judgment?

Answer 8

When the D has “appeared” even if he has not answered

Question 9

When will removal be permitted if there is no federal question and diversity does not exist?

Answer 9

Removal will be permitted if the nondiverse parties are thereafter dismissed from the action, the requirements for diversity jurisdiction are then present, and not more than one year has passed since the case was commenced in state court.

Question 10

Must a state court have SMJ over a case before it can be removed and decided in federal court?

Answer 10

No

Question 11

Timre restrictions on removal of a diversity case to federal court:

Answer 11

1. Must be removed within 30 days of D’s receipt of a copy of the paper that makes the case removable
2. In no event may the case be removed more than 1 year after it was commenced in state court

Question 12

Is removal to state court available for cases properly filed in federal court that are within the federal court’s SMJ?

Answer 12

No

Question 13

Requirements for a party to be bound by issue preclusion:

Answer 13

1. Final judgment
2. Issue must have been actually litigated and determined
3. Issue must have been essential to the judgment
4. Party to be bound by prior judgment must have been a party to the prior action or in privity with a party to the prior action