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CA BAR MBE Missed Questions > CivPro > Flashcards

CivPro Flashcards

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1
Q

When may a party or court file/grant a motion to strike regarding a party’s complaint?

A

A motion to strike can remove a part of a party’s complaint if it contains:

1) An insufficient defense

2) Redundant info

3) Immaterial info

4) Scandalous info

5) Irrelevant

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2
Q

What happens when a defendant party “defaults” and what steps may the plaintiff take?

A

Default occurs when the defendant fails to timely file a motion, answer, or any responsive pleading to a complaint.

A plaintiff may:

1) Request that the court clerk enter a default, so long as plaintiff can prove defendant’s failure to plead or defend; THEN

2) Make seek a motion for default judgment before the court.

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3
Q

What is a Judgment as a Matter of Law (JMOV) and when can it be requested?

A

JMOV can be raised by a party when there is insufficient evidence for a jury to reasonably find for said party, even in the light most favorable to them.

The court may grant a JMOV once a party has been fully heard on an issue at a jury trial, and can be raised anytime before case is submitted to jury.

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4
Q

When may a court hold Supplemental JDX over a diversity claim that does not meet the AIC requirement?

A

No!

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5
Q

Does a party consent to Personal Jurisdiction by filing a lawsuit in a forum state?

A

Yes; the party has implicitly consented to PJDX on

1) The actual matter

2) Any counterclaims asserted against them

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6
Q

Under the FRCP, may a plaintiff’s attorney deliver service of process** upon a defendant?

A

Yes!

(Note that an **attorney may be disqualified **from representing the plaintiff if the attorney is required to testify as to the propriety of the service of process, though this does not affect the validity of the service.)

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7
Q

When does a defendant waive the defense of insufficient service of process?

A

Waived if it is not raised in a pre-answer motion or in the answer itself.

If a defendant files a responsive pleading beforehand, the objection is waived.

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8
Q

What must a court do when a party is indispensable, but the court lacks SMJ?

A

The court must:

1) Dismiss the client as a party

2) Dismiss the case/action

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9
Q

When may a TRO be appealed?

A

Generally, a TRO cannot be appealed because it is not an appealable interlocutory order.

EXCEPT: If the TRO is extended past 14 days, it will be treated as a preliminary injunction and therefore appealable.

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10
Q

How do choice of laws rules work in Diversity Jurisdiction?

A

The federal court with diversity JDX over an action must apply the conflict of law rules of the state in which it sits.

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11
Q

Are choice of laws substantive or procedural?

A

Substantive

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12
Q

What is abstention?

A

In general, a federal court with subject matter jurisdiction** is required to adjudicate the controversy** despite the pendency of a similar action in a state court

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13
Q

Under Pullman, when may a court abstain from hearing a case where there is an *unsettled issue of state law?**

A

When the plaintiff brings a federal constitutional question.

Not a federal statutory question!

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14
Q

Do court’s have the discretion to order a new trial?

If so, do they also have the discretion to limit the issues addressed?

A

Yes to both!

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15
Q

What are some factors that could have a court at it’s discretion order a new trial?

A

1) Unfair judgment

2) Newly discovered evidence that existed at time of trial was overlooked AND would have altered outcome

3) Prejudicial misconduct by party, judge, juror

4) Verdict against clear weight of evidence

5) Verdict based on false evidence

6) Verdict that is excessive or inadequate

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16
Q

In deciding venue for an entity, if none of the other traditional basis’ for venue work, how do you determine venue?

A

In any state where the court has personal jurisdiction.

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17
Q

Can venue be proper in multiple places at once?

A

Yes!

If venue is already proper, unlikely that you can switch to a different proper venue.

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18
Q

For the purposes of “on the merits”, is a ruling of summary judgment on the merits?

A

Yes!

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19
Q

What is attachment jurisdiction?

A

A type of quasi-in-rem jurisdiction, where a plaintiff could use the attachment of property in a forum state to claim personal jurisdiction.

However, there must still be *minimum contacts between the defendant and the forum state.

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20
Q

When venue is transferred under the basis of convenience of the parties and witnesses, which state’s conflict of law rules should apply?

A

The laws of the transferor court.

EX: I file a suit in State A. It is removed to State B under the convenience of parties and witnesses. State A’s laws will apply because it is the transferor court.

**This is not a discretionary choice, nor can parties consent. The court MUST follow the rule of transferer court.

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21
Q

When a party intends to have an expert testify on their behalf, how many days notice must they provide the expert’s report for discovery?

A

90 days before the date set for trial

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22
Q

What are exceptions for failing to disclose an expert’s report in 90 days?

A

1) Nondisclosure was *substantially justified**

OR

2) Nondisclosure was harmless

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23
Q

When may a plaintiff successfully voluntarily dismiss an action without court approval?

A

So long as it is prior to the service of:

1) An answer

2) Motion for summary judgment

After such service, cannot voluntarily dismiss without court approval!

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24
Q

When is compulsory joinder required?

A

When the party’s participate in the suit is necessary for a just adjudication. They would therefore be a necessary party.

1) Prevents complete relief

2) Prejudice the absent person’s interest, cannot protect interests in future action

3) Results in multiple or inconsistent obligations

Permitted, so long as they do not:

1) Deprive SMJ

2) Lack of PJDX

3) Destroy Venue

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25
Are tortfeasors facing **joint and several liability** considered **necessary parties** under joinder rules?
No!
26
May party's stipulate to a jury verdict to **not be unanimous?**
Yes!
27
What is the rule regarding **jury instructions**?
The court must inform parties of the jury instructions that it proposes, and **provide parties the opportunity to object on the record, outside presence of jury.** The court must do so **prior to parties' closing arguments!**
28
Does a court have to approve of a **party's proposed jury instructions?**
No, but they have to inform them how the court will use (or refuse to use) such instructions.
29
Can a court provide **the jury with jury instructions** before closing argument?
Yes! Can do so before or after closing.
30
May a defendant raise both **alternative AND inconsistent defenses** in their answer?
Yes!
31
Under *class action suits** or suits under the **Class Action Fairness Act**, is complete diversity required?
No! Only **minimal diversity.** When **at least one plaintiff** is from a state that is different **From at least one defendant.**
32
When may a TRO be issued **without notice to the adverse party?**
1) Moving party establishes that **immediate and irreparable injury** will result prior to hearing from adverse party AND 2) Attorney **certifies in writing** any efforts made to give notice OR **why notice should not be required. **
33
Under discovery, is a party required to disclose **any insurance agreements**?
Yes, must provide for the other party copies and for inspect such agreements, where a business may be **liable to satisfy all or part of a possible judgment in the action, or indemnify or reimburse or payments made to satisfy judgment.** Part of **initial disclosures!**
34
What types of disclosures are **mandatory** for discovery purposes?
1) Initial disclosures 2) Disclosures of experts 90 days before trial 3) Pretrial disclosures 30 days before trial
35
Finish: Appealable Interlocutory orders are appealable immediately as ______
"As a matter of right" Such appeals **are not at the court's discretion.**
36
In suing an **insurance company directly**, where are they a citizen of for purposes of diversity?
1) State of incorporation 2) State where PPOB 3) State where **insured is located**
37
When will an appellate court **refuse to set aside a jury verdict?**
Depends on the court, as there are three different standards. Will refuse if: 1) **Substantial evidence** to support verdict 2) **Sufficient Evidence** to support verdict 3) Will always uphold **unless there is no evidence** to support verdict.
38
What is an **intervention of right?**
When a nonparty has the **right to intervene** when a federal statute **grant's that right.**
39
What is an **interpleader?***
Interpleader allows the **possessor of property** to force all **potential claimants** to the property into a **single lawsuit to determine ownership.**
40
What is **summary judgment** and when may it be granted?
If the pleadings, the discovery, and disclosure materials on file show that there is **no genuine dispute as to a material fact **and movement is entitled to **judgment as a matter of law.** Genuine issue of material fact exists when a **reasonable jury could return a verdict for the nonmoving party.** Court must construe all evidence in the light **most favorable to nonmoving party.**
41
Can a motion to summary judgment **be a response to a party's complaint?**
No! It is only during the pleading stage.
42
May parties **waive** subject matter jurisdiction or personal jurisdiction?
**No SMJ!** **Yes to PJDX!**
43
Are **domestic relations matters** generally heard by federal courts?
No!
44
May a federal district court transfer an action **to a court in a foreign country?**
No, even if the facts indicate that it would be appropriate/convenient.
45
When must a party serve a **written demand** for a **jury trial?
Within **14 days** of service of **last pleading**.
46
When must a party file a motion for a **new trial?**
Within **28 days** after the entry o judgment.
47
May an appellate court address a **plain error** by the court ,even if the party failed to object to the instructions?
Yes, if the error affects the defendant's **substantial rights.** EX: Improper jury instructions that affect an individual's substantial rights are reviewable under the **plain error** doctrine.
48
When must a party file a **motion for relief from a judgment?**
Must be within **one year** from the entry of judgment. Includes: 1) Judgment based on parti's or court's mistake, inadvertance, surprise, or excusable neglect 2) Moving party discovered new evidence that existed at time of trial and would change course 3) Opposing party engaged in fraud, misrep, or misconduct.
49
What are situations where a party need not meet **one year requirement** for a **motion for relief from judgment?**
Such instances state that a party can make the motion **made within a reasonable time** under the circumstances. 1) Judgment has been satisfied, released, or discharged 2) Based on earlier judgment that has been reversed or vacated 3) Would violate equity i applied prospectively based on facts or law that have significantly changed since court issued judgment.
50
Is service of process proper if it is given to an unauthorized agent at the defendant's **place of business/employment?**
No! **Authorized agent** is allowed; does not mean employees of a defendant! **Dwelling** with someone of suitable age and discretion is allowed, but not place of employment!
51
When will a **subsidiary** of a corporation be subject to personal jurisdiction?
1) Product is placed in the **stream of commerce** (even a little!) 2) **Purposefully targets** forum state
52
When can a subsidiary's **parent cooperation** be a basis to hold PJDX over a subsidiary?
Only when the subsidiary was acting as the parent cooperation's **agent or alter ego.**
53
What is the **two-dismissal rule?**
A voluntary dismissal will be **with prejudice** if: 1) Plaintiff voluntarily dismissed first action without court order **in state or fed court** 2) Voluntarily dismissed a second action **based on same claim** in **federal court** by filing a **notice of dismissal.** - **Will operate as an adjudication on the merits.** - AKA did so without a court order!
54
For diversity jurisdiction, when is an individual's **domicile determined?**
Domicile is determined **at the time the action was commenced.**
55
May a federal statute allow for **nationwide service of process**, which would therefore allow for **personal jurisdiction?**
Yes!
56
Where is venue **proper?**
1) In judicial district where any defendant resides, **if all defendants are from the same state** 2) Where a **substantial amount of events** in the claim occurred 3) Where the **property** is located 4) Where the court has personal jurisdiction
57
Regarding **conflicts of law**, if there is no federal statutory rule on point, how does a court decide whether or not to use **federal common law?**
Court will ask whether failure to apply state will result in differing outcomes. But even if the answer is yes, **the court will apply federal common law if there are affirmative countervailing interests at stake.** Same when there is a **uniquely federal interest** at take when there is a significant conflict between interest and state law.
58
When is a third party complaint **improper?**
When a party is claiming that a nonparty is **directly and soley liable** to the plaintiffs harm. In contrast, it is **proper** to bring such a complaint to argue that the nonparty owes the defendant **contribution or indemnification.** (AKA, the defending party is still partially liable!)
59
When must a party **file a motion to remove** to federal court?
Within **30 days**
60
What **must** a court do if venue is improper?
1) Dismiss the Case 2) In interest of justice, transfer the case
61
Does a court have discretion to move venue **if current venue is proper?**
Yes; a court has the discretion to change from proper venue to another proper venue. However, **if venue is improper**, then the court **MUST** either 1) dismiss the case; or 2) in interest of justice, transfer
62
What sort of **subject matter jurisdiction** does a court require for a **cross-claim?**
**Supplemental Jurisdiction** A claim by a defendant against another defendant or plaintiff to another plaintiff is allowed **without regard to AIC or citizenship**, so long as the cross-claim **arises out of the same transaction or occurrence as the initial claim.**
63
When is a **federal appellate court** bound by the decision of the **state's highest court?**
So long as the **final appeal has not been disposed of in the matter**, the court of appeals must follow the new ruling on state substantive law issue by the state's highest court. This is true **even if the federal court has handed down a decision.**
64
What happens when a court grants a **motion to dismiss** by cosnidering **evidence outside the initial pleadings?**
At that point, the pleadings stage begins. It should therefore be treated as **summary judgement.**
65
When may a motion to dismiss for **failure to state a claim upon which relief can be granted** be asserted?
1) In any pleading 2) At trial
66
What is required for diversity jurisdiction for a **federal interpleader STATUE?**
1) Complete diversity between the two adverse claimants 2) AIC is only $500 or more
67
When must a party file a motion for **summary judgment?**
Within **30 days** after **close of discovery**
68
Are jury verdicts **procedural or substantive law?**
Procedural So in a conflict of laws issue, **apply federal law!**
69
What are the three types of jury verdicts under the FRCP and how may a court choose which to use?
1) General 2) General with special interrogatories 3) Special **Court has discretion to ask jury which to return**
70
Is a court required to allow attorneys **to directly examine prospective jurors?**
**No!** However, if the court examines the jurors, it must provide the parties **an opportunity to submit questions or allow them to make proper inquiries**
71
What is the appellate standard for **findings of fact?**
Appeal can only be granted if court was **clearly erroneous** District court and judge are given great discretion
72
What is the appellate standard for **findings of law?**
Appeal can only be granted under **de novo.**
73
How long does someone have to **file an appeal?**
Within **30 days** of the **last post-judgment motion.**
74
When may a party **amend** their original pleading?
**21 days** after: 1) Service of original pleading (complaint) 2) Being served with a responsive pleading OR a motion
75
What are the requirements of a proper **subpoena?**
The subpoena will only have reach over a person to bring them for **trial, hearing, or deposition** if.... 1) Hearing is **within 100 miles** of where subpoenaed person resides, is employed, or regularly does business 2) Hearing is **within the state** where subpoenaed person **resides, is employed, and transacts business** if he is a **party or party's officer.**
76
What are three pre-answer motions that are **waived if not initially brought?**
1) Lack of PJDX 2) Improper venue 3) Insufficient service of process
77
When must a **motion to remand** be filed?
Within **30 days** after notice of **removal** was filed.
78
When may **supplemental jurisdiction** be **prohibited**?
If the original claim is based on **diversity** jurisdiction, and: 1) Would **contaminate** diversity between opposing plaintiffs and defendants 2) Seeks 75k or les and is **made by the plaintiff** 1) against parties added through joinder, intervention, or impleader; or 2) seeking to join through compulsory joinder or intervention
79
May a party who **has not** submitted a prior motion for judgment as a matter of law **submit one once a verdict has been rendered?**
No! May only **renew the motion** if it was **already made.**
80
When may a plaintiff file a **reply?**
Only pursuant to a **court ordered.**
81
How long does party have to file a **motion to strike?**
21 days, and must be **before responding to a pleading**
82
Are issues revolving a jury **procedural or substantive law?**
Procedural!
83
What is the **doctrine of forum non conveniens** and what factors are used in it's application?
Federal court may **dismiss or stay a suit** if a different **state or foreign jurisdiction would be better suited to hear it.** Factors: **Private Interests**: - Accessibility of evidence - Availability of witnesses - Burden on defendant - Enforceability of Judgment **Public Interest:** - Ability to comprehend substantive law - Choice of law - Interest in jury/community - Functionality of foreign judicial system
84
When must a JMOL **be made?**
Before the case is **submitted to the jury.**
85
What happens when a deponent **objects to a question?**
1) Objection is noted 2) Examination proceeds 3) Deponent **must answer**, unless - There is a court ordered limitation - A motion to terminate or limit deposition is present - Preservation of a Privilege
86
What is the difference in outcome when a non-answering deponent **is a non-party vs. party?**
**Non-Party:** Motion to compel can be filed **where deposition occurred.** **Party:** Motion to compel can be filed **where lawsuit is pending.
87
When may a party submit jury instructions **after the close of evidence?**
1) Request relates to **issue** that party could **not have reasonably anticipated** by the deadline OR 2) **Court permits** late submission
88
What are the **applicabilities** of appellate standards of review?
**1) De Novo:** Pure legal issues, such as conclusions of law or content of jury instructions **2) Clear Error:** Factual issues in bench trials. Credibility of witnesses, factual determinations. **3) Substantial Evidence:** Factual Issues in jury trials. Credibility of witnesses, and jury's verdict. **4) Abuse of Discretion:** Discretionary rulings by judge. Grant/denial of new trial, admissibility of evidence.
89
When may a deposition be conducted **without the court's leave** or **stipulation?**
Notice is provided, UNLESS 1) Depositions exceeds 10 depo limit 2) Deposition is sought before party's initial planning conference 3) Deponent was already deposed
90
How long does a defendant have to file their **answer** AFTER they had filed a **pre-answer motion**? I.E. after a motion to dismiss for lack of PJDX or improper venue!
The defendant has **14 days following the court's decision.**
91
Is a party **required** to make a cross-claim against a **co-party?**
No! This contrasts a **counterclaim**, where a party must raise a claim against an opposing party **that arises out of same transaction** in the **same action.**
92
Can you appeal a **motion to dismiss?**
No! Even if it is a motion to dismiss **for lack of SMJ!**
93
What are the two types of **quasi-in rem** jurisdiction?
**Type 1**: Determines party's **interests in property** - Quiet title **Type 2**: Uses person's property to satisfy **unrelated claim - Attachment - Garnishment
94
What is necessary for a valid **waiver of service of process?**
Must be: 1) Written 2) Be sent to defendant via **first-class mail** 3) **Name the court** where the complaint was filed 4) **Date of request** 5) Contains: - One copy of complaint - Two copies of **waiver form** - **Prepaid means** to return waiver
95
What happens when a defendant **fail to waive service?**
When the defendant **lacks good cause**, the defendant is required to pay the **expenses of future service**
96
May a party use allegations in the **pleadings** and an **affidavit** in arguing a lack of PJDX?
Yes!
97
When is **ordinary work product** (i.e. not opinion/legal theories) **discoverable?**
Only if: 1) **Substantial Need** 2) Cannot obtain the information contain **without undue hardship** - In other words, can obtain the info by **other means**
98
What are affadavits?
1) Based on affiant's or declarant's personal knowledge 2) Contains admissible facts 3) Show that the affiant or declarant is competent to testify **Can be used to summary judgment!**
99
Is a summary judgment a **final judgment on the merits?**
Yes! So applies for the purpose of claim and issue preclusion.
100
When is venue proper for suing a **federal officer or employee?**
**Official Capacity:** - Where any defendant applies - Substantial portion - Property resides if no real property **Individual Capacity** - General venue rules apply!
101
Is the **relation back** rule procedural or substantive?
Procedural! **Federal law applies!**
102
When a case is **removed from state to federal court**, where is venue proper?
Venue is proper in the **federal court** in the district **where the state action was pending.**
103
Is awarding attorney fees **substantive or procedural?**
Procedural!
104
When may a crossclaim be **permitted?**
If they arise from the **same transaction or occurrence.** Further, they are **permissive!**
105
For **conflict of laws** issues, is **venue transfer** procedural or substantive?
Procedural! **Federal law applies!**
106
For **conflict of laws** issues, is **remedies** procedural or substantive?
Procedural! **Federal law applies!**
107
How long does a plaintiff have to **serve a complaint**?
In the United States, **90 days!** However, plaintiff can extend the period if they can demonstrate **good cause**, such as when the delay occurred due to **matters outside of plaintiffs control.**
108
What are the steps for **compulsory joinder?**
1) Whether you are a **required party** - **Complete relief** cannot be granted w/o party - Would subject other parties to **multiple or inconsistent obligations** OR - Party's absence will **impar ability to protect an interest** (like property!) 2) Whether joinder is **feasible** - PJDX and SMJ - Proper venue 3) Whether **equity** allows action to **proceed without party**, or must **dismiss**. Dismissal required if: - Judgment would **severely prejudice** interest - Court cannot **reasonably lessen or avoid** prejudice - Judgment would be **inadequate** for plaintiff because they could be sued later AND - Buyer can pursue **alternative remedy**, such as refiling
109
When may a party grant a **motion to modify or quash a subpoena?**
**At court's discretion**, if the subpoena requires disclosure of: - **Unretained expert testimony or info** that 1) does not describe **specific issues of dispute** and 2) results from expert's **independent study, not party's request* OR - **Trade secrets** or other confidential information
110
Is determining the validity of a class **procedural or substantive?**
Procedural!
111
When is supplemental jurisdiction **prohibited in diversity cases?**
1) Would **contaminate diversity** 2) Seeks 75k or less, and **is made by a plaintiff**: - Against parties added through **joinder, intervention, or impleader** (I.E. NOT AN ORIGINAL DEFENDANT) OR - Seeking to join through **compulsory joinder or intervention** (I.E. NOT PERMISSIVE JOINDER**
112
What is the standard a court must use in determining whether th grant a **renewed motion for JMOL?**
Whether there is substantial evidence in the record to support the verdict, resolving all disputed issues in widow's favor.
113
When may a party obtain sanctions following a **request for admission** re: discovery?
If responding party **fails to admit a matter that is later proven true**, then the requesting party may require the party to pay **reasonable expenses incurred.** Must be made **after the matter** is concluded. Court must grant UNLESS - Court sustained prior objection to request - Admission not substantially relevant - Responding party reasonably believed it would prevail - Other reason to refuse to admit, such as when could not reasonably obtain information
114
Are privileges **substantive or procedural?**
Substantive!! **Apply state law!**
115
When is a **subpoena valid?**
1) Contains: - Court where subpoena issued, title of action, time and place, person's rights and duties - Signed by **county clerk** OR **attorney authorized to practice law** in court where action pending - **Properly served** 2) Person being subpoenaed: - Is within **100 miles** of courthouse based on **residency, employment, or regular business**

CA BAR MBE Missed Questions (8 decks)

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