Civ Pro MBE Flashcards
(153 cards)
1
Q
Subject-Matter Jurisdiction
A
1) Diversity of Citizenship 2) Federal Question
2
Q
Amount in Controversy
A
Must be in excess of $75K • Court must have “legal certainty”
3
Q
Adding Claims
A
Plaintiff can ADD claims if one exceeds $75K Single Plaintiff can ADD claims against Single Defendant to reach $75K Multiple Plaintiffs via Supplemental Jurisdiction If Single Plaintiff meets $75K then other plaintiffs can join Cannot join if no single claim exceeds $75K
4
Q
Class Action
A
One named member must meet $75K
5
Q
Diversity Jurisdiction
A
1) Case exceeds $75K 2) Complete Diversity of Citizenship - No plaintiff may be a citizen of the same state as any defendant
6
Q
Citizenship - Domicile
A
Present location & Intent to stay
7
Q
US Citizen + Foreign Citizen
A
Diversity
8
Q
Two Foreign Citizens
A
NO Diversity
9
Q
Corporation - Domicile
A
State of incorporation AND • Principal place of business
10
Q
Joining Parties
A
CANNOT join a party just to obtain Diversity
11
Q
Federal Question
A
1) Plaintiff’s claim must be based on federal law 2) Well-Pleaded Complaint Rule: Federal issue must be obvious Federal Issue as a defense is NOT a federal question
12
Q
Federal Question Cases
A
1) Admiralty 2) Maritime 3) Intellectual Property
13
Q
Supplemental Jurisdiction
A
May add claims without subject-matter jurisdiction if they arise from a “common nucleus of facts”
14
Q
Supplemental Jurisdiction - Allowed
A
1) Compulsory Counterclaim 2) Joinder in Compulsory Counterclaim 3) Cross-claim 4) Impleader of 3rd Party Defendants
15
Q
Supplemental Jurisdiction - NOT Allowed
A
1) Original Plaintiff vs. 3rd Party Defendant 2) Compulsory Joinder 3) Joinder of Defendants 4) Intervention
16
Q
Supplemental Jurisdiction & Discretion
A
Court has DISCRETION to apply Supplemental Jurisdiction
17
Q
Personal Jurisdiction
A
In personem • Ability to bring the individual into court
18
Q
Personal JX General Rules
A
1) Present/ Personally Served 2) Domiciled 3) Consent
19
Q
Long-Arm Statute
A
Gives courts the power to reach out-of-state persons
20
Q
Minimum Contacts Standard
A
1) Suit does not offend traditional notions of Fair Play & Justice 2) Defendant could Reasonably Anticipate litigation
21
Q
Minimum Contacts - Corporations
A
Purposeful Availment • Systematic & Continuous Activities
22
Q
IN REM JURISDICTION
A
Jurisdiction over an object/property
23
Q
QUASI IN REM JURISDICTION
A
Going after property to satisfy a judgment against an individual
24
Q
Service of Process
A
1) Only in the state where district court sits OR 2) Anywhere allowed by long-arm statute
25
100 Mile Bulge Rule
1) Out-of-state service allowed within 100 mile radius 2) Only for out-of-state 3rd party defendants/indispensable parties
26
Service of Process & Notice
Method must give adequate NOTICE
27
Proper Ways to Serve Process
1) Personal Service by non-party over 18 2) At Home with person of suitable age 3) First Class Mail 4) Authorized Agent 5) State Law Methods A - Abode W - Waiver A - Agent S - State method P - Personal service
28
Out-of-State Service of Process
1) Mail 2) Newspaper if no other reasonable way
29
Service of Process - Corporations
1) Officer or Designated Agent 2) Anyone of sufficiently high placement
30
Removal
When a State Court case could have originally been brought in Federal Court
31
Who Can Remove
1) Only DEFENDANT may remove 2) ALL defendants must agree
32
Removal - Timing
Filed within 30 DAYS of service of Complaint
33
Removal - Diversity Cases
1) Case cannot be removed more than 1 year after start 2) Defendant cannot remove if he is a citizen of forum state
34
Removal Multiple Claims
If one claim is removable, then the entire case can be removed
35
Remand
Plaintiff wants to bring case back to State Court after improper Removal
36
Remand - Timing
Within 30 DAYS of filing of Notice of Removal • Defendant has burden to show Removal was proper
37
Venue
The proper Federal District Court for the case Venue is based on where DEFENDANT resides
38
Proper Venue
1) Where any defendant resides, if all defendants reside in same state 2) Where substantial part of events took place ONLY IF 1 & 2 DON'T APPLY - 3) Where there is Personal Jurisdiction over defendant
39
Venue - Corporations
1) Principal place of business 2) Any district in state of incorporation
40
Transfer of Venue - Proper Venue
1) Court may TRANSFER to another district 2) For the convenience of parties & interest of justice 3) Law of original venue will apply
41
Transfer of Venue - Improper Venue
1) Judge must dismiss OR transfer in the interest of justice 2) Transfer to any district where the case could have originally been brought
42
Transfer by Consent
Both parties must consent
43
Dismissal for Improper Venue
If the more convenient forum is a foreign country
44
Complaint
Filing of Complaint commences Statute of Limitations Service of the Complaint within 90 days
45
Elements of the Complaint
1) Statement of Jurisdiction 2) Statement of Facts (not theory) 3) Demand for Relief
46
Answer
1) Signed by lawyer 2) Whatever is not denied is admitted 3) Served within 21 days of service of Complaint
47
Affirmative Defense
Pled in Answer Contributory Negligence • Statute of Frauds • Statute of Limitations • Illegality
48
Amendment as of Right
Once within 21 days of service of pleading
49
After 21 Days Amendment
Need Court's permission • "When justice so requires"
50
Relation Back
Arose out of the same conduct, transaction, or occurrence
51
Relation Back (for PARTIES)
1) Same conduct, transaction, or occurrence 2) Within 90 days of filing the party had notice 3) Knew/should have known but for mistake of ID
52
Rule 11
Attorney signs to best of "knowledge, information, and belief" there is a basis for the claim Key Words
53
Counterclaim
Defendant raises a claim back at the plaintiff
54
Compulsory Counterclaim
1) Same transaction or occurrence 2) Supplemental jurisdiction
55
Permissive Counterclaim
1) NOT same transaction or occurrence 2) Needs independent jurisdiction
56
Permissive Joinder
1) Single transaction or occurrence 2) Common questions of law/fact
57
Compulsory Joinder
Party needs to be joined or unfair
58
1) Necessary Party
Impair Interest • If cannot join due to jurisdiction - Case may STILL PROCEED
59
2) Indispensable Party
Prejudice • If cannot join due to jurisdiction - Case must be DISMISSED
60
Class Certification
1) Size 2) Common Question 3) Typical 4) Representation/Conflict
61
Types of Class Actions
B1 = Impairment of Interests • B2 = Injunctive Relief • B3 = Common Question (the superior method)
62
Opting Out Class Actions
B1 & B2 = Members MAY NOT OPT OUT vs. • B3 = Member MAY OPT OUT
63
Notice & Class Actions
B1 & B2 = Notice NOT required, in discretion of Court vs. • B3 = Notice to ALL members
64
Diversity in Class Actions
1) Citizenship of the named representatives 2) One member must meet $75K+ OR the sum of claims is $5 million
65
Appealability of Class Actions
If Certification of Class is denied - May be appealed
66
Intervention as of Right
1) Interest in property/transaction 2) Interest is impaired 3) NO Court permission required
67
Permissive Intervention
1) Claim/defense has common question of law/fact 2) Court permission IS required
68
Interpleader
1 party owes something to 2 or more people
69
Statutory Interpleader
1) Nationwide Service 2) ANY 2 claimants can be diverse 3) $500 or more at stake 4) Deposit money/property in Court/bond
70
Rule Interpleader
1) NO Nationwide Service 2) Complete Diversity between claimant & ALL opponents 3) $75K+ requirement 4) NOT required to deposit money
71
Impleader
Adding a 3rd party defendant who owes part or all of claim
72
Cross Claim
1) Co-party 2) Same transaction or occurrence 3) Actual damage
73
Discoverable
1) Not privileged 2) Relevant 3) "Proportional to needs of the case"
74
Work Product
Generally immune from discovery Documents prepared in anticipation of trial
75
Work Product - Discoverable
1) Substantial need 2) Cannot obtain without UNDUE HARDSHIP
76
Absolute Immunity Work Product
Mental impressions • Conclusions • Legal opinions/theories
77
EXPERT - Testifying
1) MUST provide ID 2) Expert must prepare report
78
EXPERT - NOT Testifying
Discoverable only in "EXCEPTIONAL CIRCUMSTANCES"
79
Duty to Supplement
Duty to supplement incomplete or wrong information • Must be done in a timely manner
80
Deposition
Party or non-party • Written or oral • Non-party by subpoena • Limit = 10 You cannot depose the same person more than once without the court's permission
81
Interrogatories
Only to a PARTY • Written/Answered in writing • Limit = 25
82
Request to Admit
Written request • Conclusively established
83
Request to Produce
Documents in the other side's possession, control, custody
84
Physical/Mental Exam
1) Must be at issue 2) Court Order 3) Good Cause
85
Object to a Request
Information not relevant
86
Protective Order
Stop Discovery for embarrassment, harassment, undue burden
87
Order to Compel
Party not complying with Discovery
88
Conference of Parties
1) Court MUST have conference 2) Parties MUST submit Discovery plan
89
Scheduling Conference
1) Court MUST have conference to limit time 2) Must issue SCHEDULING ORDER within 90 days of filing complaint 3) CANNOT be modified unless "Good Cause"
90
Final Pretrial Conference
1) Court MAY hold conference 2) IF there is a conference, Court MUST issue Pretrial Order 3) ONLY modified to prevent "Manifest Injustice"
91
Temporary Restraining Order
1) No notice 2) IMMEDIATE IRREPARABLE HARM 3) Expires in no more than 14 days
92
Preliminary Injunction
1) Notice & Hearing required 2) IRREPARABLE HARM
93
RIGHT TO JURY TRIAL
7th Amendment At least 6 jurors unless stipulated • Unanimous verdict unless stipulated
94
Demand for a Jury
Made within 14 days after service of the last pleading
95
Action in Equity
No right for actions based in equity (injunction, etc.)
96
Law & Equity
Legal issue is tried by jury first • Equitable claim is settled by judge
97
Withdrawing a Demand
Demand may be withdrawn IF all parties consent
98
State Trials
No right to a jury in State trials • Number of jurors varies by State • Verdict does NOT need to be unanimous
99
Judge's Role - No Jury
Acts as Finder of Fact • States Findings & Conclusions • Mini-trial to dispose of the case
100
Dismiss For Cause
Juror shows any bias/connection to case • No limit
101
Peremptory Challenge
Dismissal for any reason • Each party has 3 • CANNOT dismiss for race/gender
102
Balanced Pool of Jurors
Jury pool must be representative of overall community
103
Jury Instructions
Must object before jury retires • Or waived for appeal
104
Jury Deliberation
Allowed - Papers, Exhibits, & Notes • NOT Allowed: Anything not in evidence
105
Juror Conduct
Cannot conduct experiments or studies outside jury room • Cannot talk to non-jurors about trial • Misconduct/Possible New Trial
106
Prejudicial Information
New trial can be ordered for outside prejudicial information • Verdict will NOT be set aside for inside juror prejudice
107
New Trial for Post-Trial Bias
1) Juror failed to honestly answer a material question 2) A correct answer would have led to a valid challenge
108
12(b) Motion
Defendant is attacking the complaint
109
Lack of Subject Matter Jurisdiction
Can be raised ANYTIME
110
Waived if not included in Answer/12(b) Motion
Lack of Personal Jurisdiction • Improper Venue • Insufficient Service of Process
111
Failure to Join a Party
May be raised before or at trial
112
Failure to State a Claim
Even if the facts are true, there is no recovery • Insufficient facts • Dismissal with prejudice • May be raised before or at trial
113
Motion to Strike
Before responding to a pleading • Within 21 days of service • For redundant, immaterial, or scandalous material
114
Motion for a More Definitive Statement
Before responding to a pleading • Pleading is vague or ambiguous
115
Motion for Summary Judgment
No genuine dispute of material fact • Filed until 30 days after discovery close • Denial not appealable • Burden on moving party • Partial judgment allowed
116
Affidavits
Must be based on personal knowledge
117
Judgment as a Matter of Law - Directed Verdict͛
Raised by defendant after plaintiff's case • Raised by either party at the close of evidence
118
JMOL Standard͛
A reasonable jury would not have a legally sufficient evidentiary basis to find for non- moving party • Evidence viewed in light most favorable to non-moving party
119
Renewed Motion for Judgment as a Matter of Law͛
Must have filed a prior JMOL • Filed within 28 days after verdict • Judge may overturn verdict
120
Motion for Relief from Judgment
Clerical error, oversight, or mistake • Fraud or misconduct by the other party
121
Motion for a New Trial͛
Error would have caused different outcome • Judge erroneously admitted or excluded evidence • Improper conduct by party, witness, lawyer, or jury • Verdict is against clear weight of the evidence
122
Remittitur
New trial for excessive damages • Unless the party agrees to reduction of award
123
Additur͛
No Additur in Federal Court
124
Newly Discovered Evidence͛
1) Evidence was discovered after trial 2) Party was reasonably diligent in searching before/during trial 3) Evidence was material
125
Default Judgment
One party fails to plead or defend • Court enters default judgment
126
Voluntary Dismissal
Plaintiff voluntarily dismisses • Before Answer/Summary Judgment • First time without prejudice
127
Involuntary Dismissal
COURT dismisses the case
128
Involuntary Dismissal - Without Prejudice
1) Lack of Jurisdiction 2) Venue 3) Failure to Join Indispensable Party
129
Judicial appearance of bias
Parties can waive
130
Grounds for Recusal
Judge MUST recuse himself and parties CANNOT waive if: 1) Personal knowledge of facts 2) Acted as lawyer with one of the other lawyers 3) Expressed an opinion on merits while in government employment 4) Financial interest in subject matter/party 5) Violates Due Process Rights
131
Res Judicata/Claim Preclusion
1) Same parties or privity 2) Same transaction or occurrence 3) Judgment on the merits
132
Res Judicata - Merger
Plaintiff wins case • Claim merges into judgment • Cannot sue on same cause of action
133
Res Judicata - Bar
Plaintiff loses case • Barred from suing on same cause of action
134
Claim Splitting
Plaintiff cannot SPLIT a claim
135
Res Judicata does not apply to
1) Dismissal for lack of jurisdiction 2) Dismissal for improper venue 3) Settlement (unless after settlement, case is dismissed with prejudice)
136
Collateral Estoppel/Issue Preclusion
1) Same issue 2) Final judgment 3) Issue necessary to judgment
137
Collateral Estoppel does not apply
1) Settlement 2) Default Judgment
138
Defensive Use of Collateral Estoppel
Same Plaintiff, New Defendant • New Defendant can use Collateral Estoppel as defense
139
Offensive Use of Collateral Estoppel
New Plaintiff, Same Defendant • New Plaintiff cannot use Collateral Estoppel against Same Defendant
140
Applicable Preclusion Rule - Diversity Cases
First case in Federal Court, apply federal preclusion rule • First case in State Court, apply the first jurisdiction's preclusion rule
141
FULL FAITH & CREDIT
One state must respect the other's judgments
142
APPEALS
Notice of Appeal Filed within 30 days of judgment
143
Grounds for Appeal
1) Objections made at trial 2) Must state grounds 3) Waived if not preserved
144
Appellate CourtGenerally reviews
issues of LAW • Deference to trial court for FACTS
145
Appealing Errors
Outcome would have been DIFFERENT • No appeal if error was HARMLESS
146
Collateral Order Exception
1) Conclusively determines disputed question 2) Resolves important issue separate from merits 3) Delay would cause irreparable damage
147
Denial of Summary Judgment Appeal
Not appealable
148
Order for New Trial
Not appealable
149
Partial Final Judgment
Not preferred to avoid piecemeal appeals
150
Appealable
Grant/Denial Injunctions • Certification/Denial of Class Action
151
De Novo
Issues of Law
152
Abuse of Discretion
Court Errors • Relevancy • Prejudice • Admissibility
153
Clearly Erroneous
Issues of Fact
