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MBE > MBE Civ Pro > Flashcards

MBE Civ Pro Flashcards

1
Q

MBE

Subject Matter Jurisdiction: Diversity

A

1) Plaintiff and Defendant must reside in different states
- If person: physical and actual intent to remian
- If corporation: place incorporated and principal place of business.
2) More than $75,000 (legal certainty)

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2
Q

MBE

Personal Jurisdiction (Parties)

A

Always has personal jurisdiction if:
1) Resides in the state
2) Physically present in that state and served
3) Consent to be sued in that jurisdiction

May have personal jurisdiction if:
1) Minimum contact with the state
- More contract = more likely.
- It cannot violate due process – should have been reasonably anticipated.
2) Doing business in another state
- Business activities are systematic and continuous
- Purposeful availment – tax benefit.

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3
Q

MBE

Subject matter jurisdiction: federal question

A

Plaintiff’s complaint must be based on federal case/matter

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4
Q

MBE

Removal from state to federal court

A

Can only be done by defendant.

Can only be done if case could’ve been filed in federal originally – court must have subject matter.

Remanded: send back where it was filed due to something being improper.

MUST REMOVE NO LATER THAN 30 DAYS OF SERVICE

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5
Q

MBE

Venue (only about Defendant)

A

Venue may be proper in multiple places:
1) Where defendant resides
2) Where substantial part of activities took place
3) Where Defendant is reachable (only applies if 1 and 3 are not satisfied)

If D lives outside the US - venue is proper in any federal court unless there are multiple D’s and one of them lives in the state - then venue is proper with US D.

Venue for business:
1. all districts where they’re subject to PJ.

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6
Q

MBE

Service of Process

A

Service was proper if (1) it provided adequate notice or (2) reasonably likely to inform.

Direct Service: **
1. Non-party and
2. Over 18.
**
Indirect Service
1. Leave at residence – ok as long as person leaving it with is of suitable age.
2. First class mail – as long as receipt of notice.
**
Registered Agent (for corporations)**
If can’t serve registered agent – then ok to serve anyone with sufficiently high placement.

4) Any manner of service as long as it complies with state statute.

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7
Q

MBE

12b Motion to dismiss (Pre-Answer Motion)

A

Can be filed at any time:
1. Lack of subject matter jurisdiction

if not claimed/ filed together, waived.
1. Personal Jurisdiction
2. Improper Venue -must be filed together. If not waived.
3. Improper Service of process
4. Improper process (problem with the papers)

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8
Q

MBE

Judgment as Matter of Law

A
  1. After the other side rests rests or
  2. After both sides rest – but before case goes to the jury.

This motion basically states that a reasonable jury does not have enough evidence to find for the other party.

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9
Q

MBE

Renewed Motion Judgement as a Matter of law

A

Happens after case comes back from the jury – only the party that made the original motion can renew it.

Must be made within 28 days after entry of judgment.

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10
Q

MBE

Motion for a new trial

A

A party must move for a new trial within 28 days of the judgment.

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11
Q

MBE

Complaint

A
  1. Short and plain statements of facts
  2. Statement for grounds of jurisdiction
  3. Demand for relief (Damages)
    • Complaint must be filed with summons at clerk’s office
    • This action starts the statute of limitation.
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12
Q

MBE

Answer

A

Can Deny/Admit.
If not denied, then it is presumed admitted.

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13
Q

MBE

Amending Pleadings/Answers

A
  1. Amendment as a matter of right:
    • Can do it 1 time without court permission.
    • Must be done 21 days after service of the original complaint.
  2. Amendment by leave of court:
    • Must have courts permission – but its ok if its “required by justice”
  3. Amending answer:
    • if D answered and forgot a defense, can amend if he has the right to do so.
    • to amend, 21 days after serving answer.
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14
Q

MBE

Relate Back (Used for statute of frauds)

A

When the amended pleading arose out of the same:
1. Conduct or
2. Transaction or
3. Occurrence.

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15
Q

MBE

Erie Doctrine

A

1) State v. State:
- Law of the state where the court sits – where the case was filed.

2) State v. Federal
- Sate substantive law will apply unless the issue is a matter of procedure.
- If state and federal law in conflict – federal law applies.

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16
Q

MBE

General Personal Jurisdiction

A

Person:
1. Defendant is at home (state of domicile) or
2. served with process in the forum.

Corporation:
at home in (1) state its incorporated (2) states of principal place of business.

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17
Q

MBE

Specific Personal Jurisdiction

A

Specific jurisdiction is a form of minimum contacts that enables a court to exercise personal jurisdiction over a corporate defendant in that state without violating due process because of the extent of the defendants’ activities within that state.

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18
Q

MBE

Process:

A
  1. summons
  2. Copy of complaint
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19
Q

MBE

To serve process:

A
  1. non-party
  2. Atleast 18

can use state law methods where (1) the federal court sits or (2) where service is made

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20
Q

MBE

When must service be served?

A

Within 90 days of filing the complaint

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21
Q

MBE

Personal service v. Substituted service

A

Personal:
1. service given to defendant directly
Substituted:
1. only at defendats usual place of abode
2. left with someone of suitable age and discretion
3. person must actually live there

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22
Q

MBE

Service on a busienss or organization

A
  1. delivery to an officer or
  2. managing/general agent or
  3. state law method.
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23
Q

MBE

Service on a minor or incompetent person

A

Made be made only by method permitted by the law pf the state in which service is to be made!

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24
Q

MBE

Service on parties in a foreign country

A
  1. as directed by american courts
  2. method allowed by foreign country law
  3. Letter rogatory (method directed from foreign court to american court
  4. personal service in the foreign country
  5. Mail sent by clerk of American court requiring signed receipt (unless not allowed by foreign law)
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25
Q

MBE

Waiver of service of process

A

Plaintiff must mail the defendant notice and require to waive service.

Must include:
1. copy of complaint
2. two copies of waiver
3. prepiad means to return form

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26
Q

MBE

Proving service of process

A

Process server will file a report or if done by civilian the report is an affidavidt.

Failure to file report does not affect the validity of service.

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27
Q

MBE

Service of process: Immunity

A

Defendant is immune from process while appearing in another court case.

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28
Q

MBE

Service of other documents

A

Answers, other pleadings, discovery - mailing/emailing is ok as long as the parties agree.

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29
Q

MBE

Citizenship of a natural person - domicile

A

A person can only be domiciled in 1 state!!

Can be changed by:
1. intent to make new place home and
2. physical presense in that new place.

diversity considered at the time the claim was filed

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30
Q

MBE

District of Columbia - for diversity

A

Considered a state!

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31
Q

MBE

Citizenship of corporation

A
  1. any state or counry where its incorporated and
  2. one state the country has principal place of business

Principal place of business - where the manager calls the shots.

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32
Q

MBE

Citizenship of an un-incorporated association (partnership, LLC’s)

A

takes citizenships of all memebers

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33
Q

MBE

Citizenship of decedents, minots, and incopetents

A

Must be sued through a representative.

Must use the citizenship of the decedent, minor, or incompetents.

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34
Q

MBE

Citizenship of class action

A

Use the citizenship of the named representative

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35
Q

MBE

Calculating amount in controversy: aggregation of claims

A

Adding 2 or more cases to meet controversy amount.

Any single plaintiff may aggregate all of her claims against a single defendant.

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36
Q

MBE

Equitable Relief

A
  1. injunction
  2. specific performance
  3. rescission
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37
Q

MBE

Amount in controversy: Equitable relief

A
  1. look at the plaintiffs viewpoint
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38
Q

MBE

Cases that cannot be heard from diversity jurisdiction

A
  1. divorce
  2. alimony
  3. child custody
  4. probate & estate
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39
Q

MBE

Diversity: 1 year limitation

A

a diversity case with an in-state defendant can become removable when the claim against the in state defendant is voluntarily dismissed.

Must remove within 30 days pf the dismissal.

40
Q

MBE

Supplemental Jurisdiction

A
  1. must have a case already in federal court.
    • federal court must have jurisdiction on every claim.
  2. must arise from common nucleous of operative fact as claim in exisitng federal court case.
41
Q

MBE

Limitation on the use of supplemental jurisdiction in diversity cases

A

the limitation is only on diversity

Plaintiff cannot use supplemental if case got into federal court on diversity.

Exception: multiple plaintiff’s sue 1 defendant for a claim under diversity. The claim by 1 of them doesnt meet the requirement, can cling onto other P’s diversity and claim supplemental. So long as it meets common nucleous test.

42
Q

MBE

Transfer of venue

A

transfer must stay in the same judicial system.

ex. transfer from trial court 1 in state A to trial court 2 in state A.

43
Q

MBE

Transfer of venue: when venue is proper

A

Burden is on the party seeking the transfer.

Court will consider public and private factors:
1. Public Factors:
- court will consider what law applies, burden of jury service, keep a local controversy in a local court.
2. Private Factors:
- convenience like where the defendants are and where the evidence is.

44
Q

MBE

Transfer of venue: effect on choice of law

A

the tranferee court must apply the choice of law rule of the transferor court.

45
Q

MBE

Effect of forum selection clause

A

Here, parties agree where disputes between then will be litigated.

Federal law enforces this provision as long as its not unreasoanble - some states dont like this.

When transfer is to satisfy the forum selection clause - the choice of law does not transfer with the case. Court will apply its own laws.

46
Q

MBE

Transfer of venue: when venue is improper

A

the transferee applies its own choice of law. This is to prevent P from benefiting by filing in an improper forum.

47
Q

MBE

Forum non conveniens

A

The court invoking forum non convenien can:
1. hold the case
2. dismiss it

This gives parties the chance to re-file case in a proper forum. Other court must be adequate. Court is held inadequate if it does not permit recovery at all - no remember is available.

48
Q

MBE

Complaint: Special pleadings requirements

A

Must be plead with particularity or specificity:
1. fraud
2. mistake
3. special damages

49
Q

MBE

Defendant’s response to pleadings

A
  1. motion
  2. answer

must respond within 21 days

if waived service, 60 days

50
Q

MBE

Motions addressing issues of form

A
  1. 12e: so vague and ambiguous
  2. 12f: motion to strike ans ask the court to remove redundant or immaterial things from pleadings.
51
Q

MBE

12b motions that can be raised later - that are not waived.

A
  1. Subject matter jurisdiction (whenever)
  2. Failure to state a claim (anytime before trial)
  3. Failure to join indispensable party (anytime before trial)
52
Q

MBE

Denial of rule 12 motion

A

14 days to respond with answer

53
Q

MBE

Amended pleadings: Variance

A

Evidence at trial does not match what was pleaded.

54
Q

MBE

Amendment to change defendant

A
  1. amendment concerns same conduct, transaction, or occurance.
  2. D had knowledge of case
  3. D knew or should have known of mistake

usually applies when P sues the wrong D

55
Q

MBE

Signature Requirement

A

All papers must be signed except for discovery

56
Q

MBE

Sanctions

A

Sanctions are meant to deter repeat of a certain type of conduct.

Types:
1. non-monetary sanctions: like attending a professionalism class
2. monetary sanction: money paid to the court

57
Q

MBE

Safe harbor provision

A

party seeking sanctions must serve motion on opponent.

party in violation has 21 days to fix and avoid a sanction.

58
Q

MBE

Joinder

A

Plaintiff may join as many claims as they want - as long as it meets subject matter jurisdiction if in federal court.

Can join multiple P’s or D’s as long as it arised out of the same occurance or common question.

59
Q

MBE

Joinder: Necessary and indispensable parties

A

The court might force non-party ppl to join the case if:

Necessary and indispensable:
1. complete relief cannot happen among the existing parties (multiple future lawsuits)
2. absentee’s interest may be harmed
3. subjects a party to risk of multiple obligations

joint tortfeasors are never necessary

If party cannot be joined - court may decide if to dismiss the claim. That would mean party is indispensable.

60
Q

MBE

Impleader

A

Defendant brings in someone new - usually for indemnity or contribution.

61
Q

MBE

Intervention

A

non-party can use intervention to bring themselves into the claim by either (1) right or (2) permissive.

62
Q

MBE

Class action

A

must meet all 4:
1. numerosity - too many class members for joinder
2. commonality - same issue in common
3. typicality - reps claims are typical
4. adequate representative - fairly and adewuately represent the class.

63
Q

MBE

Types of class action

A
  1. Type 1 (prejudice) (no notice)
    • necessary to avoif harm. Very rare.
  2. Type 2 (injunctive or declaratory) (no notice)
    • injunctive or declaratory relief, cannot seek damages.
  3. Type 3 (common question or damages) (notice required!)
    • common question must predominate over personal ones
    • class action is the superior method.
64
Q

MBE

Certification of class

A

the requirement for class certification is reserved for a judge and not a jury.

Certification is automatically appealable

Court defines class, claims, issues, and defenses

Notice to all members in a class must be given if type 3! Paid by personal rep.

Claim can be filed in federal if rep has SMJ.

65
Q

MBE

Class action fairness act

A

federal court can be asserted aside from federal question and diversity if under CAFA:
1. 100 class members
2. any class member diverse from any D
3. claims exceed 5 million.

66
Q

MBE

Discovery

A

Must disclose even if parties didnt ask for it:
1. names, numbers, addresses of people with discoverable info
2. docs you make use to support claim/defense.
3. If claiming $$ must provide computation
4. Must disclose any insurance that might cover all or part of judgment

if you fail to disclose something - cannot use it in the case

  1. if using expert witness must disclose:
    • opinion that expert will express
    • bases for thier opinion
    • facts used to form the opinions
    • experts qualitifications
    • how much expert is being paid

failure to disclose expert - will not allow expert testimony. Unless failure was justified and harmless

67
Q

MBE

Discovery Tools

A

party cannot send discovery requests to another party until after inital disclosures - can only send request to produce

  1. Depositions - live testiomony. Questions can be written or oral. Recorded ans transcribed. Can take depositions of parties and non-parties but only non-parties get subpeonas - only reasoanble if travel less than 100 miles.
  2. Interrogatories - written questions to be answered in writing under oath. Sent only to parties. Must be answered within 30 days. Must answer based on reasoanble available info. Can allow requesting party to review all docs and have access to records.
  3. Request to produce - only within the parties. Must respond within 30 days of service.
  4. Medical exam - health must be in controversey and good cause.
  5. Request for admission - written request that someone admit something. If party fails to deny a proper request, the matter is deemed admitted.
68
Q

MBE

Duty to supplement discovery

A

If new facts come to light after responding to discovery that require disclosure - party must supplement discovery.

69
Q

MBE

Scope of discovery

A

party can discover anything that is relevant and proportional to the needs of the case.

No one cares if its not admissible at trial.

70
Q

MBE

Objections to discovery

A

Can object to:
1. privilege
2. work product
- opinion work cannot be discovered. Opinion/conclusion/ legal theory.

Work product is discoverable if:
1. substantial need and undue hardship

If invoking priv or work product, must describe material in priv log.

Court can order to limit discovery if producting can cause (1) annoyance, (2) embarassment or (3) undue burden.

71
Q

MBE

Merit Sanctions

A
  1. establishment order
  2. strike pleadings of the disobidient party
  3. Disallow evidence from disobidient party
  4. dismiss plaintiffs case
  5. enter default judgment against defendant
72
Q

MBE

Adjudication without trial

A
  1. temporary restraining order
    • issued before getting a preliminary injuction
  2. preliminary injuctive relief
    • injunctive relief - to do something or stop from doing something.
    • court looks at: (1) irreparable harm, (2) win on merits, (3) balance of hardship favors (4) public interest.

order granting or denying preliminary injunction may be appealed right away

73
Q

MBE

Voluntary dismissal

A

Dismissal without court permission: P can withdrawl without court order but must do so before there is an answer or motion

Dismissal with court permission: must make a motion for voluntary dismissal. Court has discretion - first dismissal is without prejudice.

**Default and default judgment: ** D does not respond to the complaint on time. Can be entered by clerk. Default cuts off time to respond. Default cannot exceed amount of complaint.

*Defendant can move to set aside judgment - but must have viable defense and show good cause. *

Clerk can also enter default judgment if:
1. claim has a certain sum of $$$
2. P gives an affidavit of sum of $$$
3. Defendant is not a minor or incompetent.

Judge enters default judgment if:
1. D has made an appearance at all during the process
2. Judge has discretion to grant or deny

74
Q

MBE

Motion for failure to state a claim

A

Judge considers if there are any plausible claims - if no, then motion granted and parties not allowed to proceed.

Judge might allow amendment in order to fic complaint and try to plead a claim.

75
Q

MBE

Motion for summary judgment

A
  1. trial might not be needed because no dispute on material fact and
  2. entitled to judgment as a matter of law.

Can look at evidence in light most favorable to non-moving party.

Can be made no later than 30 days after the closing of discovery.

Judge might give partial summary judgment.

76
Q

MBE

Rule 26f pre-trial conference:

A

12 days before the court scheduling order

before discovery

12 days after plan must five court detailed discovery plan which includes how it will be produced and any problems retrieving.

77
Q

MBE

Scheduling order

A

Roadmap before it goes to trial

  • court enters order to set cut off to joinder and everything else
78
Q

MBE

Pre-trial conference:

A

final pre-trial conference determines the issues to be tried and evidnece to be proffered at trial.

This is to check what evidence is going to trial in order to prevent surpirses.

79
Q

MBE

Right to jury trial: Civil

A

no right to jury in equity cases

80
Q

MBE

Jury demand: Civil

A

must demand for a jury no later than 14 days from the last pleading addressing a jury triable issue.

Usually the answer.

81
Q

MBE

Jury Selection: Civil

A

Peremptory challenges: may be used only in a race and gender neutral manner.

Number of jurors: min 6 max 12 unless the parties agree otherwise.

82
Q

MBE

Jury instruction: Civil

A

Conference regarding jury instructions may be held if:
1. confer what instructions will be given and
2. what proposed jury intruction is rejected.

83
Q

MBE

Forms of verdicts

A

General verdict: who wins and what the relief is

Special verdict: specific writtenquestions about facts in dispute - but does not say who wins or loses.

General verdict with written questions: gives a general verdict but also answers specific questions submitted to jurors.

84
Q

MBE

Motion for judgment as a matter of law

A

happens during trial after other side has been heard.

Basically saying that a reasoanble person could not disagree on the result - like summary judgment except it comes up at trial.

85
Q

MBE

Remittitur

A

jury damages are excessive or inadequare

court must give choice to lower amount or request new trial

allowed in federal and state court

86
Q

MBE

Additur

A

court offers the defendant a choice:
1. add to the damage award
2. new trial

only allowed in state court

87
Q

MBE

Offer to settle

A

Defendant can submit a formal offer to settle up to 14 days before trial.

88
Q

MBE

Notice of appeal: Civil

A

D must file notice to sppeal in district court no later than 30 days after entry of judgment.

If multiple claims/parties must wait for ALL claims to be done in order to appeal - unless court gives a final judgment.

89
Q

MBE

Temporary restraining order: changing it

A

TRO is only valid for 14 days. If renewed for more than 28 days it converts into preliminary injuction.

90
Q

MBE

Appeal: Class action

A

Appeals court has discretion to review an order granting or denying class action certification.

Party seeking review has 14 days from day of order to appeal it.

91
Q

MBE

Writ of mandamus

A
  1. an appeal would be insufficient to correct the problem and
  2. trial courts actions constitute a serious abuse of power in need of immediate rectification.

goes straight to appeals

92
Q

MBE

Civil: Review of questions of law

A

de novo standard - no deference is given to the district judge.

93
Q

MBE

Civil: Review of fact in jury trial

A

given great deference to trial court. Appeals court will usually affirm unless reaosnable people could not have made that finding.

94
Q

MBE

Civil: Review of discretionary matters

A

Discretionary matters - affirm unless abuse of discretion.

95
Q

MBE

Res Judicata (claim preclusion)

A

once a final judgment has been rendered on the merits, claimaint is barred from claim preclusion.

Claimaint cant sue again for the same issue.

Same p vs. same d & case 1 mustve ended on valid judgment on the merits - does not count if for venue or indispensible party.

96
Q

MBE

Issue preclusion

A

Requirements:
1. ended validly on merits
2. same issue actually litigated
3. essential to judgment on case #1
4. only used against someone who is a party to case #1
5. can be used by somebody that was not a party to case #1 and is D in case #2.

MBE (8 decks)

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