MBE Civ. Pro Flashcards
Misses (25 cards)
Striking Pleadings
Rule 12(f)
A party can move to strike from a pleading an insufficient defense or any redundant, scandalous, impertinent, or immaterial matter. A party must make this motion (1) before responding to the pleading or (2) within 21 days after being served with the pleading if a response is not allowed.
Federal Rule Analysis
To determine whether an issue is substantive or procedural, federal-rule analysis applies if a valid federal law directly addresses the issue. Under federal-rule analysis, a federal court sitting in diversity must apply that federal law so long as the law is arguably procedural and does not modify a substantive right.
Claim Preclusion
Under claim preclusion, a valid final judgment on the merits prohibits relitigating identical claims between identical parties. Claims are identical when they arise from the same transaction or occurrence. Parties are identical if they (or their privies) occupy the same roles in both actions.
Waiver of Defenses Timeline
Replies to Defendant’s Answer
When it’s allowed (2)
A plaintiff may respond to a defendant’s answer by filing (1) an answer if the defendant asserted a counterclaim or (2) a reply if the court orders it.
Federal Rule Anaylsis + Relating Back Doctrine
Under federal-rule analysis, a federal court sitting in diversity must apply a valid federal law that is arguably procedural and does not modify a substantive right. FRCP 15 governs the procedural issue of whether an amended pleading relates back to the date that the original pleading was filed.
Statutory Interpleader Requirements
Subject-matter jurisdiction for statutory interpleader requires an amount in controversy of at least $500 and minimal diversity between the claimants—ie, at least two claimants must be citizens of different states.
Waiver Form in Mailed Service of Process
A plaintiff must send a written waiver-of-service request to the defendant via first-class mail or other reliable means. The waiver must state the name of the court and the date the request was sent. It also must contain a copy of the complaint, two copies of the waiver form, and a prepaid means to return the signed form.
Modifying Pretrial Conference Orders
At the final pretrial conference, a federal district court judge will issue a final pretrial order that formulates a plan for trial. The court may modify this order only to prevent manifest injustice.
Parties’ initial discovery planning
The parties must hold an initial conference to plan for discovery. The conference must be held as soon as practicable and at least 21 days before a scheduling conference with the court is held or the judge’s scheduling order is due.
Who can enter default judgment and when
The default can then be entered as a default judgment by the clerk or the court.
A court clerk must enter a default judgment when (1) the plaintiff’s claim is for a sum certain, (2) the plaintiff’s request for default judgment includes an affidavit establishing the amount due, (3) the defendant failed to appear, and (4) the defendant is not legally incompetent or a minor.
Removal + Preserving Jury Trial
In a removal action, a party preserves its right to a jury trial by (1) demanding a jury in state court before removal or (2) serving a jury trial demand within 14 days after filing or being served with the notice of removal, so long as all necessary pleadings had been served before removal.
MSJ Postponement
After receiving a motion for summary judgment, the nonmovant can request that the court postpone considering it until additional discovery can take place. This request must include an affidavit or declaration specifying why the evidence has not been obtained and describing the desired discovery.
Discovery Sanctions for Pretrial Conference
A federal court may issue reasonable sanctions against any party or attorney who is substantially unprepared to participate in a pretrial conference. Additionally, a court must order the payment of the opposing party’s reasonable expenses unless (1) noncompliance was substantially justified or (2) the payment would be unjust.
Partnership Citizenship
For diversity purposes
For purposes of diversity jurisdiction, a corporation is a citizen of every state where it is incorporated and/or has its principal place of business. An unincorporated association is a citizen of every state where its members are domiciled—ie, where the members reside and intend to remain indefinitely.
Minor Service of Process
Under Federal Rule of Civil Procedure 4(g), a minor or legally incompetent defendant can only be served with process by following the service rules of the state where service is made.
Forum Non Conveniens Factors
Private:
* Accessibility of evidence
* Availability of witnesses
* Burden on defendant
* Enforceability of judgment
Public:
* Ability to understand substantive law
* Choice of law
* Interest of jury/community
* Functionality of foreign judicial system
Discretionary Rulings Standard of Review on Appeal
The abuse-of-discretion standard of appellate review applies to a trial court’s discretionary rulings—eg, whether to admit evidence. Under this highly deferential standard, the appellate court will only reverse a clearly arbitrary or unreasonable ruling.
General Verdict with Answers inconsistency
A general verdict with answers requires that the jury decide which party should prevail and provide answers to questions on each factual issue. If the verdict and answers are inconsistent, the judge must (1) order a new trial, (2) direct the jury to further consider its answers and verdict, or (3) enter a judgment consistent with the answers.
Timing of Jury Instructions
In a jury trial, a court (1) may instruct the jury at any time before the jury is discharged, (2) must inform the parties of its proposed instructions before instructing the jury and closing arguments, and (3) must allow the parties to object on the record and outside the presence of the jury before the instructions and closing arguments are delivered.
Is denial of summary judgment a collateral order?
The denial of summary judgment is not a collateral order—ie, a district court order that conclusively resolves an important issue that is (1) separate from the merits of the claim and (2) effectively unreviewable on appeal from a final judgment. That is because an appellate court can easily (and routinely does) review the denial of summary judgment on appeal.
Consequence for failing to admit a matter later proven true
If the responding party fails to admit a matter that is later proven true, then the requesting party can move for the responding party to pay reasonable expenses incurred, including attorney’s fees, in making that proof. The court must grant this motion unless one of these conditions applies:
- The court had sustained a prior objection to the request.
- The admission sought was of no substantial importance.
- The responding party reasonably believed that it would prevail on the matter.
- Another good reason existed for the failure to admit.
Required Party Joinder
A required party must be joined in a lawsuit when feasible—ie, when personal jurisdiction, subject-matter jurisdiction, and proper venue exist. If joinder is not feasible, the action must be dismissed if it would be inequitable to proceed without the required party.
Correcting Mistake in Judgment Timing
A district court may correct a mistake in a judgment, order, or other part of the record on its own initiative or pursuant to a party’s motion before an appeal from the judgment or order is docketed. The district court need only obtain the appellate court’s leave to correct the mistake after the appeal has been docketed.
