MBE Civ Pro Flashcards
(112 cards)
1
Q
What are three categories of jurisdiction?
A
1) Subject-matter
2) Personal Jurisdiction
3) Venue
2
Q
Who can object to Subject matter jursidiction?
A
Lack of SMJ can be raised by any party at any time, including by:
1) A plaintiff who chose to go to the wrong court,
2) the court itself,
3) Anyone for the first time on appeal
3
Q
What is federal question jurisdiction?
A
Claims that arise under federal law
4
Q
How is federal question jurisdiction determined?
A
Plaintiff’s claim must be based on federal law
Look at the face of P’s complaint:
- only the p’s claims count for determining FedQ JX; (existence of federal defense does not matter)
- P does not need to anticipate or plead a response to a defense.
5
Q
What are the requirements for diversity JX?
A
Diversity Jurisdiction is one type of subject matter JX and the requirements are:
1) Citizens of different states (or a foreign country)
2) OVER $75K
General rule: complete diversity. Every P is separate form Every D (some P’s can be same and/or some D’s can be same)
6
Q
What are the exceptions to diversity JX
A
1) probate
2) domestic relations
Neither can be brought in federal court under diversity JX.
7
Q
When is diversity determined for diversity JX?
A
Diversity must exist when the claim is filed. Does not matter at time of action or time of trial.
8
Q
What is minimum diversity and when does it apply
A
Minumum diversity is an exception to complete diversity in which any P is diverse from any D.
It applies:
- Federal Interpleader Act,
- Class actions with at least 100 class members and more than $5mil in claims,
- Interstate mass torts with at least 75 dead in one accident.
(outside these exception general rule applies)
9
Q
How is citizenship of an individual determined?
A
State or country of domicile. Residence + intent to remain indefinitely. Can have only 1 legal domicile at a time.
A citizen of a foreign country who has been admitted to the U.S. as a permanent resident is treated as a citizen of the state where domiciled.
10
Q
What citizenship controls? (generally, class actions, exceptions)
A
Generally, it the citizenship of the representative that controls.
For class actions it is the citizenship of the named parties or represented parties that count. Unnamed parties may join without regard to citizenship.
Exceptions:
1) decedent’s estate case, citizenship of decedent controls;
2) Case involving minor or incompetent person, citizenship of that person controls.
11
Q
How is citizenship of corporations determined?
A
1) where incorporated:
2) principle place of business (HQ or nerve center)
*can have several citizenships simultaneously
12
Q
How is the citizenship of a partnership and unincorporated associations determined?
A
Citizen of every state of which its members are citizens
(must show complete diversity between P and where every member of the org is domiciled.)
*partnerships, limited partnerships, trade associations,
13
Q
what devices can create or destroy diversity?
A
Actions that create or destroy diversity are permitted so long as they are not “shams” or fraudulent.
Moving to destroy diversity is fine, so long as there is an actual move and not a “sham” move.
Assignment of a claim is also permitted so long as it is real (for value), complete, and not collusive.
*partial assignment for debt collection does not affect citizenship
14
Q
What is the amount in controversy (AIC) requirement in diversity case?
A
1) must exceed $75K
2) Any good faith allegation will suffice.
*only when it appears to a legal certainty that the AIC will not be met will the court dismiss the case for lack of AIC.
15
Q
When can AIC be aggregated to achieve $75K
A
One P and one D. P can combine all claims to reach the threshold. (even if claims are unrelated)
16
Q
When can AIC not be aggregated to reach $75K?
A
1) One P v. two (or more)D. Claims against each D must be over $75K.
*If joint and several liablity then all Ds will be treated as one single D.
2) two (or more) P v. one D. Each P must be seeking over $75k from D.
17
Q
What is removal?
A
Removal moves a case from state court to federal court.
(transfer moves case from one federal district to another)
(There is no procedure to move a case from federal court to state court.)
18
Q
What is the general rule fo removal?
A
1) removal is only proper if the case could have been brought originally in federal court.
2) Only Defendants can remove. (All defendants must consent to removal within 30 days of service.)
3)Ask: if the P would have brought case in Federal court would federal court have had subject matter jurisdiction?
19
Q
What is the well-pleaded complaint rule?
A
Federal question JX hinges on whether the federal question appears on a the face of a well-pleaded complaint.
20
Q
When can a Defendant remove a case to federal court for federal question JX?
A
1) still hinges on P’s well-pleaded complaint. If P’s claim is based on state law, D can’t remove to Fed C.
21
Q
When can D remove a case to federal C for diversity cases?
A
1) there is complete diversity,
2)Amount in controversy exceeds $75K,
3) the action is brought in a state in which no D is a citizen.
*there is a one year limit of removal unless P acted in bad-faith.
22
Q
What are the procedures for removal?
A
A notice of removal is filed in federal court, with a copy to state court.
When the state receives the notice, the state’s JX drops instantly and automatically.
23
Q
What if D files for an improper removal?
A
P can file a petition in federal court for remand, and then the federal court will hold a hearing and make a decision.
If removal improper, remand is granted, and case goes back to state court.
24
Q
What is the basic rule in supplemental jurisdiction?
A
Allows a federal court with subject-matter jurisdiction 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. (arise out the some common nucleus of operative fact) (All claims arise out of the same transaction or occurence.)
Allows, but does not require court to expand jurisdiction. At court’s discretion.
25
What is required to achieve supplemental jurisdiction in federal question subject matter JX?
Only that claims arise out of the same transaction or occurence.
26
When are supplemental jursidiction claims by plaintiffs in diversity jurisdiction not allowed?
1) Plaintiffs agains person made party to the under rules 14,19,20, or 24
2) parties seeking to intervene as plaintiffs under rule 24; or
3) claims by parties proposed to be joined as plaintiffs under rule 19.
*Supplemental claims by a plaintiff are only allowed if they are brought against a single defendant and no other rule is involved in making the defendant to the party
27
What is a compulsive counterclaim and does it have to meet diversity AIC requirements? (In diversity JX)
A compulsory counterclaim is one that arises out the same transaction or occurrence as the opposing party's claim. Compulsory counterclaims brought by defendant's (usually the case) does not have to meet diversity AIC requirements. Compulsory counterclaims by additional plaintiffs do.
28
What is a permissive counterclaim and when can it be heard in diversity JX?
A permissive counterclaim is one that does not arise out the same transaction or occurrence as the main claim. It can only be heard by a federal diversity court Only if it independently satisfied diversity JX.
29
What is a cross-claim and when can it be asserted in diversity JX?
A claim by a co-party agains another member of the party ( P v. P, or D v. D) is a cross claim.
Must be related (arise out the transaction or occcurance)
To qualify for supplemental jurisdiction it must be related to a claim over which the court has subject matter jusrisdiction, and;
Must not be asserted by a plaintiff agains a person made party under rules 14,19,20, 24.
30
What about multiple plaintiffs and a single defendant in diversity JX?
If the claim is one diverse plaintiff against a single defendant satisfies the jurisdictional amount, other diverse plaintiffs who have additional claims against the defendant can also be heard even if their claims do not satisfy the AIC minimum.
31
How do you determine personal jurisdicition?
1) Has the basis for exercising PJ over and out-of-state defendant been obtained by statute or by rule of the court?
2)Is the particular basis for exercising personal jurisdiction permitted by the due process clause of the Const?
PJ can we waived if contesting PJ is not raised at the first opportunity.
32
What are the three types of personal jursidiction?
1)In personum
2) In Rem
3) Quasi In Rem
33
How do you determine if in personam jx is met?
Due process required minimum contact between the defendant and the forum state.
Ask: Are there sufficient contacts between the defendant and the forum so that it would be consistent with TRADITIONAL NOTIONS OF FIAR PLAY AND SUBSTANTIAL JUSTICE to sue D there.
34
What are the two types of In personam JX?
1) General: P can assert any claim whatsover, even if it is unrelated to the D's contacts with the forum state.
2) Specific: Claims must arise out of the D's contact with state.
35
What is the basis for General In Personam JX?
1) Served while in state (except brought to state by force or fraud, or only to answer summons)
2) Domicile (Corporation domicile for this is "at home". State of incorporation or principle place of business.
3) Consent: express or implied. (appointing an agent to receive process or by contract.)
36
What is specific In pesonam jurisdiction and how is it established?
Defendant must have sufficient minimum contacts with the forum such that the exercise of jurisdiction is fair.
State Long Arm Statutes giver courts in peronam JX over out-of-state D, but Only for the particular transactions involving the sate.
37
What are three federal excepts in which federal courts do not need to rely on long-arm statutes to have JX of out of state D?
1) Federal Interpleader Act :"statutory interpleader": Authorized nation wide service of process. Multiple parties seeking adjudication over single piece of property.
2) Bulge provision: allows service anywhere within 100 miles of federal courthouse. Used for Impleading third-party D under rule 14, and joining necessary parties under rule 19.
3) Unusual provision: When P is suing under federal law put D has no state that has jurisdiction over D. As long as D has minimum contacts with the US as a whole.
38
What is In-Rem JX?
Suit agains a piece of property. Court must have control over the property, so must be in state where property is located.
39
What is Quasi In-Rem
Not likely on bar.
Traditionally suing property with contacts to get at a D.
now it's the same minimum contacts rule
40
What is the Constutional test for good service?
"must be reasonable under the circumstances.
41
What is the relationship between Fed rules of service and State?
Federal rules of service always work, any State rules will also work in addition to the federal rules.
42
What are the 4 federal service rules?
1) In hand personal delivery;
2) Leaving a summons at the D's dwelling or usual place of abode with a person of suitable age and discretion;
3) Delivery of the summons to an authorized agent;
4) For persons in foreign countries, service can be made by registered mail, return receipt requested.
43
How do you serve a minor?
Must complete service on minor and guardian
44
How do you serve an incompetent person?
Must complete service on incompetent and guardian.
45
How can you serve a partnership?
Service on:
- a general partner
- an attorney in fact, or
- an authorized agent.
46
How can you server a corporation?
Service on:
- Officer
- director
- managing agent
- agent appointed for receiving service of process
47
How are non-resident motorists often served?
Generally, service can be made on a state official who forwards a copy to the out-of-state defendant. (state law, not federal)
48
What is standards for service in In Rem and Quasi In rem aCtions?
Must make a diligent effort to locate all claimants to the property and serve them personally
If the claimants cannot be located, then notice by publication is permitted.
49
Can a D waive service? How and why do so?
D's have a duty to avoid unnecessary expense of serving the summons by waiving service. P can notify D by first class mail of action and D has 30 days to responds - 60 outside US. (D has 60/90 days to respond if waives).
D is also responsible for cost of service so will save money if waive.
50
What are the rules to determine venue?
1) where any defendant resides, so long as ALL defendants reside in the same state; or
2) where a "substantial part of the events or omissions" on which the claim is based occurred or where a "substantial party of the property" that is subject of the action is located.
*If neither of the above (rare) then any JX where D is subject to personal JX has venue.
51
How is residence determined for venue?
Individuals: residence means domicile
Business entities: every district in which personal JX exsists.
52
Does a district court have venue if case removed from state court, but district would not otherwise have venue?
Yes. for a case that began in state court and removed to federal court, venue is automatically proper in the district where state court sits, even if the district woulnd not have been proper originally.
53
What is the general rule of transfer and the exception regarding venue?
Transfer is only allowed to a district with proper venue.
Exception: transfer to a district without proper venue may occur when ALL parties agree.
1) A case brought in a district with proper venue may be transferred for convenience to another district with proper venue.
2) A case brought in a district court without proper venue may be:
i - dismissed, or;
ii - transferred to a district with proper venue.
54
What is the conflict of law when transferring venue?
1) If suit brought with proper venue then "take the law with you"
2) If suit brought with no proper venue, law of the district with proper venue (the second court)
55
What is the erie doctrine?
In a diversity case, a federal court will apply state substantive law
56
what are four things that have been determined to be substantive law?
1) what must be done to prove a case and what defenses may be asserted
2) Statute of limitations on state cause of actions,
3) The burdens of proof on state claims and defenses; and
4) State rules on claims
57
What is Hanna v. Plumer:
Federal Rules of Civ Pro are procedural and for the purposes of eerie will apply
58
What if there is no federal statute or rule on point?
Courts aim to avoid forum shopping and unequal administration of justice.
If the choice of law is outcome determinative, then courts usually apply state law to prevent forum shopping.
Jury is always controlled by federal law
59
How do federal courts determine applicable state law?
1) Follow precedent from State's highest court
2) If no precedent, predict state court ruling
3) Give respectful attention to the decisions of lower state courts, but not bound by them.
60
What is a pleading and what are the three types?
A pleading is a complaint filed with the court clerk to commence proceedings. The three types are:
1) Complaint
- states a claim of relief
- includes cross-claim complaints agains co-party
2) Answer
- response to complaint - may include counter-claim
3) Reply
- Plaintiff's answer to counter-claim
61
What three items must be included in a complaint?
1) short and plain statement of court's subject matter jurisdiction
2) short and plain statement showing claimant is entitled to relief; and
3) claim for relief sought by the pleader (you get what you prove, not what you ask for)
Notice Pleading: all that is required is a clear and concise statement of the claim showing that pleader is entitled to relief.
62
What two types of pleadings require particularity/specificity/detail?
1)Fraud or mistake
2) claims for special damages (lost business, etc)
63
What are 4 types of defense motions against a complaint?
1) motion to dismiss
2) Motion for judgment on the pleadings (when parties agree on facts but the law is indispute)
3) Motion for more definite statement (asks that pleading be made more specific)
4) Motion to strike (to strike prejudicial material that is NOT relevant to case at hand)(or used by P to strike an invalid defense)
64
What are 6 issues that can be raised in a motion to dismiss?
1) Lack of SMJ (cannot be waived)
2) Lack of PJ (Made at earliest opportunity, pre-answer motion to dismiss or the answer)
3) Improper venue(Made at earliest opportunity, pre-answer motion to dismiss or the answer)
4) Failure to state a claim for which relieve can be granted
5) Failure to join a necessary party
6) forum non conveniens.
65
What happens if there is no answer to a complaint?
Failure to respond is an admission
Admissions are binding in the action unless cured by amendment
("boilerplate" denial of everything not specifically admitted commonly used)
66
What can amendments to pleadings be made?
1) As of right: Once with 21 days of service or 21 days of D's response.
2) By leave of court: freely granted unless judge has valid reason to deny.
67
What is the doctrine of relation back?
Key date for tolling statute of limitations will occur at original pleading rather than amendment if the amendment concerns the same conduct, transaction, or occurrence as the original pleading. (Did proper defendant have notice?)
68
When can plaintiffs use permissive joinder?
Any number of plaintiffs my join if:
i) they assert claims arising out of the same transaction or occurrence, and;
ii) there is a common question of law and fact.
*(Diversity cases) No party can be joined whose presence would destroy complete diversity, if joinder rules otherwise satisfied
69
When can defendants use permissive joinder
Any number of defendants my join if:
i) they assert claims arising out of the same transaction or occurrence, and;
ii) there is a common question of law and fact.
*(Diversity cases) No party can be joined whose presence would destroy complete diversity, if joinder rules otherwise satisfied
70
When is compulsory joinder of parties?
1) Is bringing party necessary for a just adjudication?
2) Is it feasible: it is feasiable if will not deprive the court of SMJ and the court can assert personal JX over necessary party.
3) Proceed without party, or throw out case.
71
What is joinder requirement in diversity and fed q?
All claims can be joined (need not be related)
In diversity jx, P can aggregate all claims to exceed minimum AIC requirement.
In federal question if diversity is lacking for additional state-law claims, then those claims can only be joined if they are covered by supplemental jurisdiction (must arise from same transaction or occurrence as original claim)
72
What are the joinder requirements for compulsory counterclaims?
Supplementary JX will usually be available for compulsory counter-claims. If there is SMJ for the main claim, there is SMJ over a compulsory counterclaim
Diversity: If counterclaim is raised by D then it is not barred by any of the plaintiff's diversity supplemental jurisdiction exclusions.
Statute of Limitations: filing the original complaints tolls the SOL for the original claim and for any compulsory counterclaims.
73
What are joinder requirements for permissive counter claims?
- may be plead no or later.
-requires independent JX basis and meet fed q or meet full diversity requirements.
74
What are cross claim joinder requirements?
Cross claims are never compulsory and must arise out the same transaction or occurrence as original claim. Must perform independent supplemental JX analysis.
75
What is an impleader?
Impleader is an device use by the defendant to bring in an additional defendant who my share in the liability.
- indemnification contracts, or
-joint tortfeasors
Diversity cases: falls under subject matter JX (citizenship and AIC don't matter but his is only for D claims against the third-party, not Plaintiff claims).
Plaintiff cannot make a claim against third-party defendant unless complete diversity is met.
76
What are 4 prerequisites for class action?
1) Numerosity (too many parties to be joined conventionally)
2)common question of law or fact
3)typicallity of claims by class reps; and
4) Adequacy of representation.
*Dismissal or settlement requires judicial approval
77
What is the class action fairness act of 2005
Allows large class actions that involve at least 100 members and claims over $5mil. (only minimal diversity is required).
78
What are the three states of disovery?
Initial disclosure
Disclosure of expert witnesses
pretrial disclosures
79
What are the 4 required initial disclosures?
1) Names and addressess of persons with potentially discoverable information
2) Copies and descriptions of relevant documents or things
3) Computation of damages claimed; and
4) Applicable insurance agreements
80
What is required disclosure for expert witnessess?
1) Names of expert witnesses who will be called at trial
2)Qualifications, publications, opinions, information on which they will base their opinions, other cases in which they have testified, and compensation.
81
What is due for pretrial disclosure and when is it due?
A list of witnesses and exhibits is due 30 days before trial.
Objections must be made 14 days after disclsoure or are waived unless excused for good cause.
82
What is the general rule for scope of discovery?
General rule is relevance. You can discover anything that might be admissible at trial or lead to something that might be admissible at trial. (not limited to admissibility).
83
What do judges way in deciding if discovery is relevant?
Proportionality
Courts consider the importance of the issues, amount at stake, parties' resources and access to information, value of discovery in the case, and, most importantly, whther the BURDER or EXPENSE of discovery outweighs the BENEFIT.
84
What are two exceptions to discovery?
Evidentiary privilege
Work-product rule
85
What are the three elements of the work-product rule?
1) A document or thing (not the underlying info)
2) prepared in anticipation of litigation or for trial
3) By or for another party or that party's representation.
86
What are the two elements required to overcome work-product?
1) real need
2) can't get elsewhere
87
What are the six discovery devives
1) oral depositions
2) Written depositions
3) interrogatories
4) Discovery and inspection of documents and land
5) physical and mental examination
6) Requests for admissions
88
What is the framework for oral depositions?
- questions asked and answered orally and under oath
- limited to 10, unless approved by court
- limit of each to one 7hr day, unless court approval
- any kind of notice to a party; not party requires subpoena
-Subpoena duce tecum to request respondent bring specific items/papers
-serve subpoena to organization - they choose who shows up
-taken anytime after mandatory disclsoures
-may be taken before notary public who is not otherwise disqualified
89
What is the framework for interrogatories
questions asked and answeredd under oath in writing
may only be used against another party
-presumptive limit of 25 interrogatories, unless court allows more
-responses required within 30 days
-may respond by producing business records if it answers the questions the burden of the deriving the answer from the record is substantially the same for the party serving the interrogatories as for responding party.
90
What is the framework for discovery and inspection of documents and land?
- called a request to produce and permit inspection
- applies only to documents, things, and land under control of a party
- request must describe item with particularity
- response due within 30 days
91
What is the framework for request for admissions?
-used to streamline litigation
-failure to respond within 30 days is an admission (failure to respond may be rule 11 violation)
-Admissions are only binding in current litigation, and can't be used adversely against party in future litigations.
92
How are depositions used at trial?
-Depo of adverse party is admissible as an admission of party opponent
-Depo of mere witness can be used to impeach that witness
- Depo of witness who does not testify can be used if dead, beyond subpoena power, or otherwise unavailable. (more than 100 miles from the place of trial).
93
What are three cases the court can grant immediate discovery violation sanctions?
1)Failure to attend one's own depo
2)Failure to respond to interrogatories.
3) Failure to respond to a request for documents or things.
94
What will the court do if electronically stored info (ESI) is lost or destroyed?
Normally ESI should be preserved
It lost through unreasonable conduct of party, the court may order measures to cure the prejudice to the other party.
If material was destroyed with intent to prejudice the other party, the court may instruct the jury to presume the information was unfavorable, or even order the end of litigation.
95
What are the 5 devices for terminating a case before trial?
1)Judgment on the pleadings
2) Default judgment (D didn't show up)
3) Voluntary dismissal
4) Involuntary dismissal
5)Summary judgment
96
What is the framework for voluntary dismissal?
-P has a right to a voluntary dismissal once at anytime prior tot he defendant serving an answer or motion for summary judgment.
-D's motion to dismiss (lack of JX or venue) does not cut off P's right to voluntary dismissal.
-After that (or if P already dismissed once) P must seek leave of court for dismissal without prejudice.
-P will have to pay costs if filing same action against same D again later.
97
What is the framework for involuntary dismissal?
-typically with prejudice
- without prejudice if involuntary dismissal for lack of jx, improper venue, or failure to join necessary party
- dismissal with prejudice bars future litigation
-standard for appellate review is abuse of discrection
98
What cause of actions have a right to jury trial, versus those that dont?
Equity issues = no right to jury. Injuntion, specific performance, admiralty issus.
Damages have right to jury trial.
When legan and equity issues overlap the legal issues adjudicate first.
99
What is the standard for Motion for judgment as matter of law
Viewing the evidence in the light most favorable to the non-moving party, the evidence cannot support a verdict for that party, and the moving party is thus entitled to judgement as a matter of law.
(rule 50: judge must find insufficient evidence for a jury to reasonably find for the non-moving party)
Made by D at end of P's case or either party at close of evidence
100
What is a renewed motion for judgment as a matter of law?
Same as a judgment as a matter law but must be submitted within 28 days of the jury returning a verdict.
Not eligible to submit if there was no submission of a motion for judgement as a matter of law
101
What are grounds for a new trial
Motion for new trial must be submitted within 28 days of return of verdict.
Granted at discrection of the court for:
-legal errors
-newly discovered evidence
-prejudicial misconduct
-verdict agains weight of evidence in substance or damages.
Review:
-question of law is de novo review: (all issues from scratch)
-other grounds are abuse of discretion.
102
What is a remittitur?
if court determines verdict damages were too excessive it will give P a choice of reduction of damages of new trial.
103
When does a judgment become final? When is notice of appeal due?
`When entered by the clerk on the court's docket (not when announced)
notice of appeal is due in the trial court within 30 days. (timely post-judgment motions will toll the 30-day limit).
104
What are two types of interlocutory orders?
1) immediately appealable: injunction, change or affect possession of property
-class actions certifying or refusing to certify a class action.
2) discretionary: Issue involves controlling question of law with substantial grounds for difference of opinion; and
immediate appeal may materially advance termination of the litigation.
Both trial court and appellate courts must agree to allow the appeal.
then appellate court must agree to accept the appeal.
105
What is a writ of mandamus?
Immediate appellate review for an order that is an abuse of authority
106
What is the standard of review for questions of law?
De Novo:
-did the trial court make an error?
-was the error prejudicial?
107
What is the standard of review for finding of fact?
Jury verdicts must be affirmed if supported by substantial evidence.
Judge's findings of fact must be affirmed unless they are clearly erroneous.
108
What is the standard of review for matters of discrection?
Abuse of discretion
any reasonable decision will be uhpheld.
109
What is full faith and credit
Courts int he U.S, both state and federal, must give full faith and credit to judgments rendered by courts of other states, provided that the rendering court had JX.
Court is allowed to view JX at present when making the review.
110
What are the two doctrines of preclusion?
Claim preclusion
Issue preclusion
Ask two questions in this order:
1) is the claim in the second suit precluded by the prior adjudication? If yes, inquiry ends.
2) If not, are there any issues in the second suit precluded by the prior adjudication?
111
What is the rule of claim preclusion?
- A final judgment on the merits of a claim bars re-litigation of that claim by the same parties or their successors in interest.
- precludes re-litigation of every claim that was raised or should have been raised in the first suit.
112
What is the three requirements of claim preclusions
1. there must have been a final judgement on the merits in the first suit;
2. The second suit must be between the same parties or their successor in interest; and
3. the second suit must involve the same claim or cause of action.
*includes default judgements, dismissal with prejudice, etc.
** Bar claims that could have been brought in the first case but were not (or new legal theories, etc.)
