Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

MBE TOPICS > Civ Pro > Flashcards

Civ Pro Flashcards

1
Q

Types of Subject Matter Jurisdiction

A

Diversity, FQ, (or supplemental)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Diversity Jurisdiction

A

(type of SMJ)
The P and D must reside in different states and the case must be in excess of $75k

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Federal Question Jurisdiction

A

(type of SMJ)
The Ps complaint must be based on a federal question

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Where is a corporation domiciled for purposes of Diversity Jurisdiction?

A

In all states in which it is incorporated and in the one state where it has its Principal Place of Business

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

The court will always get Personal Jurisdiction over the parties if:

A

1) The parties reside in that state;
2) A party is physically present in a state and served with a complaint;
3) A party consented to be sued there;
4) A party has sufficient minimum contacts w/ that jurisdiction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

If you do not have sufficient minimum contacts it is a violation of

A

due process

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Removal

A

when a case could have been filed in federal court from the beginning but was filed in state court, D may remove the case to federal court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Who can remove a case?

A

only the defendant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What happens if removal is improper?

A

The case is remanded

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

2 ways venue will always be proper:

A

1) Wherever the Defendant resides;
2) Where the substantial part of events took place

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

If the two ways to have proper venue are not available, where is venue proper?

A

Wherever the D is “reachable” (aka wherever the D has personal jurisdiction)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Direct Service

A

Serving a D directly with a complaint by a non-party who is over 18 y/o

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

You may indirectly serve a D at their “usual place of abode” (not necessarily their home all the time) so long as

A

it is to someone of a suitable age and they live there

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

You may indirectly serve a D by first-class mail so long as

A

there is a receipt acknowledging the complaint was received

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

You may indirectly serve a D corporation via

A

their designated agent or authorized agent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

If a D Corporation does not have an authorized agent you may indirectly serve the complaint to

A

someone of sufficiently high placement (CEO, etc.)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

You may indirectly serve someone by complying with

A

any state statute regarding service

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Where can you NOT serve a Defendant if they are not there?

A

AT THEIR WORK!!! Cannot do this

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Service of process is ok so long as it provides

A

adequate notice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

If one party wants to apply one state law and another party wants to apply a different state’s law, which law will the court apply?

AKA: state law v. state law

A

the law of the state where the court sits (wherever the case was filed)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

If one party wants to apply state law and another party wants to apply federal law, which law will the court apply?

AKA: state law v. federal law

A

State law UNLESS its a procedural issue then federal law applies

exception: if state law and federal law conflict, then federal law will apply (bc supremacy clause)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

A party has sufficient minimum contacts in a forum state if they:

A

purposely availed themselves to the laws of the state and future litigation was foreseeable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

General PJ exists if:

A
  • D is at home in the forum state; or
  • D was served process in the forum state
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Who may serve process?

A

any one at least 18 years old and who is not a party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
When must process be served?
within 90 days of filing the complaint
26
May process be waived?
Yes. D can waive process and this does not waive any defenses if they do so
27
May claims be aggregated to meet the amount in controversy requirement of diversity jurisdiction?
yes so long as it is ONE SINGLE PLAINTIFF aggregating all their claims against ONE SINGLE DEFENDANT (does not matter that the claims are not related)
28
When can removal of a case be done?
No later than 30 days after service
29
If removal is based solely on diversity jurisdiction, the case should not be removed if:
- ANY Defendant is a citizen of the forum state AND - It has been more than 1 year since the case was filed in state court
30
if a P is moving to remand a case for any reason other than SMJ, how much time do they have?
30 days. NOTE: no time limit to remove a case because of lack of SMJ
31
supplemental jurisdiction
when a case is already in federal court, but we want to bring an additional claim that the federal court does not have SMJ over
32
when can an additional claim be brought in under supplemental jurisdiction
if the additional claim has a common nucleus of operative fact with the original claim NOTE: same T/O = always meets common nucleus test
33
limitation on supplemental jurisdiction
in diversity cases, Plaintiffs cannot invoke supplemental jurisdiction
34
must a court invoke supplemental jurisdiction?
no, they have discretion to do so but do not have to
35
substantive issues that will always require applying state law:
- conflict or choice of law rules - elements of a claim or defense - SOL - rules for tolling SOL - standard for new trial bc of jury's damages being excessive or inadequate
36
Transfer of venue is from...
one court in a judicial system to another court in the same judicial system
37
If original venue is **proper**, the court may
transfer the case and the transferee court must apply the law of the transferor court (aka the court that originally had proper venue)
38
If the original venue is **improper** the court may
transfer the case in the interest of justice OR dismiss the case
39
If the case is a diversity case and is transferred because of **improper** venue, what law does the transferee court apply?
Transferee court applies its own choice of law rules!!! (Because the case is being transferred there since they have diversity, so it makes sense they apply their own law)
40
complaint must contain
sufficient facts to support a plausible claim
41
plausibility of a claim is determined by
the judge's own experience and common sense
42
deadline for a D to respond to a Ps complaint
no later than 21 days after being served if D waived service, then 60 days after waiver form was mailed to them
43
when can a motion for lack of SMJ may be raised?
at any time, even on appeal
44
when can a motion for lack of PJ, improper venue, insufficient process may be raised?
this motion is WAIVED if not raised in Rule 12 Motion or Answer, whichever is first
45
when can a motion for failure to state a claim or failure to join a party be raised?
at any time before or after trial
46
compulsory counterclaims
arise from the same t/o as the Ps claim and are waived if not asserted
47
permissive counterclaims
do not arise from the same t/o as Ps claim and are **not** waived if not asserted
48
a cross-claim is
a claim against a co-party
49
impleader claims are
3rd party claims when D wants to shift their liability to P to someone else note: If D is claiming they are not liable at all, the third party defendant is, then this an improper impleader claim and is not allowed
50
Main difference between type 1, 2, and 3 class action
type 3 class action requires NOTICE to class members that they are in the class!!! type 1 and 2 require no notice to members of the class and they do not have an option to opt out, but type 3 members do have the option to opt out
51
intial required disclosures
within 14 days of rule 26(f) conference, each party must: - disclose people, docs, and things you may use to support your claim - insurance coverage - computation of relief sought with supporting documents
52
depositions
- can be to parties and non-parties - non-parties: need a subpoena to be deposed - subpoena duces tecum can be used to request certain docs be brought to the depo
53
interrogatories
can only be to parties and cannot have more than 25 rogs, including subparts, and you must respond within 30 days of service
54
request to produce
can only be to parties and you must respond within 30 days of service
55
requests for admissions
can only be to parties and you must respond within 30 days of service if you fail to deny something, it is deemed to be admitted
56
work product protection
anything prepared in anticipation of litigation is protected
57
qualified work product
may be discovered if the requesting party can show undue hardship and substantial need (things like drafts and reports of qualified experts)
58
opinion work product
can never be discovered it is absolutely protected (mental impressions, conclusions, opinions)
59
preliminary injunctive relief
maintains the status quo until trial
60
TRO
maintains the status quo until a hearing for a preliminary injunction can be held - last 14 days - cannot exceed 28 days, if it does, its deemed to be a preliminary injunction
61
entry of default can be entered by the court clerk if:
- D has not appeared AT ALL - it is a claim for a sum of money - P gives an affidavit of the sum of money owed - D is not a minor or incompetent *** if one of these is not true: the P must apply to the court for default judgment to be entered by the judge
62
standard used for MSJ
there must be no general dispute of material facts and the movant must be entitled to judgment as a matter of law
63
when must motion for summary judgment be brought
no later than 30 days after the close of discovery can move as early as after the other side has been heard
64
if a case includes both law and equity questions
jury will decide questions of fact first then judge will decide remaining legal questions of equity
65
demand for trial by jury must be done when?
no later than 14 days after service of the last pleading addressing a jury triable issue
66
impeaching a verdict for jury misconduct will only occur when
the verdict was affected by EXTERNAL matters we cannot use the mental process of jurors to impeach a verdict
67
when can a party move for a motion for judgment as a matter of law (JMOL)?
after the other side has been heard
68
when can a party move for renewed motion for judgment as a matter of law (RJMOL)?
within 28 days of entry of the judgment and ONLY IF the party previously moved for JMOL at the proper time
69
remittitur
offers the P the choice to accept less damages than awarded instead of going through a whole new trial (applies in state and federal courts)
70
additur
offers the D the choice to add to the damages instead of going through a whole new trial (not allowed in federal courts)
71
final judgment rule
losing party can only appeal a final judgment
72
interlocutory appeals
if the district courts order is not a FJ, it might be appealed using one of the following doctrines: - **interlocutory appeal as a matter of right** - (orders that grant, deny, or modify an injunction) --- (NOTE: if TRO exceeds 28 days its a preliminary injunction and can be appealed under this doctrine) - **Interlocutory appeals act** - **collateral order doctrine** - **multiple parties and claims** - **class action** - (order granting/denying class action certification is immediately appealable as of right but if denied, must happen within 14 days of being denied) - **extraordinary writ of mandamus/prohibition** - (AC can compel DC court to vacate an order if its clear DC is violating a clear legal duty)
73
appellate review standard for questions of law
DE NOVO (no discretion to DC judge)
74
appellate review standard for questions of fact in a bench trial
clearly erroneous
75
appellate review standard for questions of fact in a jury trial
no reasonable person could have made the jury's finding
76
appellate review standard for discretionary matters
abuse of discretion
77
claim preclusion
claim is precluded from being asserted in the 2nd case if: - the same claimant is suing the same defendant **and** - there was a valid final judgment on the merits of case 1
78
issue preclusion
issue will be precluded from being raised in the 2nd case if: PIANO P- party in a prior lawsuit (the party you are using it against was a party in case 1 or in privity with a party in case 1) I- identical issue A- actually litigated and determined N- necessary for the judgment O- opportunity to litigate
79
non-mututal defensive issue preclusion
person asserting issue preclusion was not a party to case 1 and is now the defendant this is allowed
80
non-mutual offensive issue preclusion
person asserting issue preclusion was not a party to case 1 and is now the plaintiff NOT ALLOWED!!! P cannot assert issue preclusion
81
Grounds to support a motion for a new trial
1. jury misconduct 2. insufficiency of the evidence

MBE TOPICS (8 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions