1
Q
Elements of federal question jurisdiction
A
- There is a federal question in dispute; and
- Question appears on the face of a well-pleaded complaint
2
Q
What is diversity jurisdiction and when does it exist?
A
Jurisdiction based on the parties’ citizenship.
Exists when:
- There is complete diversity between parties (no party is a citizen of the same state as the other party); and
- Amount in controversy is greater than $75,000
3
Q
How is citizenship for diversity jurisdiction determined for:
- Persons?
- Corporations?
A
- Persons: where the party is domiciled → where party currently resides and intends to remain indefinitely. Only one domicile allowed.
- Corporations: place of incorporation and/or principal place of business. Can be domiciled in 2 states.
4
Q
Define
supplemental jurisdiction
A
Power for courts to hear a claim that does not have SMJ as long as the claim is substantially related to one for which SMJ does exist
5
Q
When can a case be removed? (generally)
A
When P could have filed original complaint in federal court (i.e. fed court has FQ, diversity, or supplemental jurisdiction over all claims)
6
Q
What is the minimum contacts analysis for PJ?
A
- Did the D purposefully avail himself of the forum (such that it was foreseeable litigation could occur)?
- Would exercise of PJ violate notions of fair play and substantial justice? (If D has minimum contacts, extremely rare for this to defeat PJ)
7
Q
Define
specific jurisdiction
A
Exists when the claim is related to D’s contacts in the forum state.
Examples include:
- committing a tortious act in a state
- signing a contract in a state
8
Q
Where is venue proper?
A
- District where D resides, if D’s are all residents of the same state;
- District where a substantial portion of events giving rise to the claim occurred; or, if none of these provide basis for venue then →
- Any district that has PJ over any D
9
Q
Where can a party transfer venue if:
- Original venue was proper?
- Original venue was improper?
A
- Original proper: As long as the new district would also have proper venue. The transfer will be granted if the new district is more convenient for the suit 28 U.S.C. § 1404
- Original improper: Any district where venue would be proper
10
Q
How can process be served?
A
Either:
- In the manner prescribed by the state court in the state where the federal suit has been filed; or
- In the manner prescribed by the state court in the state where D will be served; or
- Serve process in the manner specified in FRCP 4(e)(2)
11
Q
In a diversity jurisdiction case, assuming state common law and federal law conflict, what is the first step in Erie analysis?
A
Determine the law behind the primary issue, and determine whether the law is procedural, substantive, or something in the middle.
- If the issue is substantive, apply state law.
- If the law is procedural, apply federal law.
- If the law is something in the middle, proceed to step two.
12
Q
For Erie analysis, if the law is something in the middle, how do you determine which law to apply?
A
Ask:
- Outcome determinative test: Does the choice of law impact the outcome of the case? If so, apply state law.
- Forum shopping: Would failing to apply the state law lead more people to want to litigate in federal court ? If so, apply state law.
- Balance of interests: Does the state have a greater interest in having its own law applied than the federal law? If so, apply the state law.
13
Q
What types of laws are substantive?
A
- Choice of law
- Statute of limitations (when the SOL impacts a substantive right)
- Elements of a crime or case
- Burdens of proof
14
Q
Compare procedural and substantive laws
A
Procedural: Laws that provide the process by which a case will progress. Examples include methods of serving process or time limits for filing motions.
Substantive: Laws that provide a right. Examples include the duty of care or a state privacy law statute.
⚠️ Note: Some laws, such as a statutes of limitations, fall in a grey area between the two. These laws are where most issues with the Erie Doctrine reside. The status of such statutes is dependent on the outcome determinative test (Step 2).
15
Q
Rule 12(b) grounds for dismissal
A
- Lack of SMJ;
- Lack of PJ;
- Improper venue;
- Insufficient process;
- Insufficient service of process;
- Failure to state a claim upon which relief can be granted; and
- Failure to join a party under Rule 19
16
Q
What is a complaint and what must it contain?
A
Pleading filed to initiate lawsuit.
Must contain:
- Grounds for SMJ;
- Statement of claim; and
- Demand for relief (damages, equitable relief, etc)
17
Q
D has ____ days after service of process to file an answer
A
21
18
Q
What must an answer contain?
A
- Admittance or denial of all complaint allegations
- Failure to deny constitutes admission
- Affirmative defenses (if D fails to raise in answer, they will be waived)
- Self-defense
- Statute of Fraud
- Statute of Limitation
- Contributory negligence
- Claim preclusion
- Fraud
19
Q
When can a party amend its pleading as a matter of course?
A
- Parties may amend pleadings once as a matter of course within 21 days of service of process.
- If the pleading is one to which a responsive pleading is required, 21 days after either service of a responsive pleading or filing pre-answer motion (whichever came first)
20
Q
When do amendments adding parties “relate back”?
A
If:
- Amendment arises out of the same conduct, transaction, or occurence as the original pleading; and
- Within 90 days after the complaint is filed, the new D:
- Received notice & will not be prejudiced; and
- Knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity (i.e. suit was foreseeable)
21
Q
A party has ___ days to respond to an amended pleading
A
14 days after service of the amended pleading or the time remaining for response to the original pleading (whichever is later)
22
Q
What 12(b) defense is never waived?
A
Lack of SMJ
23
Q
When is joinder of additional parties permitted?
A
Multiple plaintiffs can join a party or sue multiple D’s if:
- P is suing D’s jointly, severally, or in the alternative;
- Claims arise out of the same transaction or occurrence; and
- There is a common question of law or fact to all parties joined
24
Q
What occurs if a necessary party cannot be joined?
A
The court uses a balancing test to determine whether the suit should be dismissed:
- Would the judgment rendered in the party’s absence prejudice that person or the existing parties?
- Could prejudice be lessened or avoided by:
- protective provisions in the judgment;
- shaping the relief; or
- other measures
- Would a judgment rendered in the person’s absence be adequate?
- Would the plaintiff have an adequate remedy if the action were dismissed?
25
When is joinder of parties **compulsory**?
If party is **necessary →**
1. **Complete relief cannot be issued** in the party's absence; or
2. Failure to join would **impede the rights** of either that party or existing parties
26
# Define
impleader
When the D adds a **third party** to the case, alleging third party is responsible for some or all of the liability facing the D (i.e. "It wasn't my fault, it was his fault")
## Footnote
(common for indemnity cases & with joint tortfeasers)
27
What is **interpleader** and what are the **two** different types?
Allows a party with multiple, different claims to **join all the claimants together.**
Types:
1. **Rule** interpleader ([FRCP 22](https://www.law.cornell.edu/rules/frcp/rule_22))
2. **Statutory** interpleader ([28 USC § 1335](https://www.law.cornell.edu/uscode/text/28/1335))
28
What are the **SMJ, PJ, and venue** requirements of rule (**FRCP 22)** interpleader?
1. SMJ → For diveristy, stakeholder must be diverse from every claimant (**complete diversity required**) and amount in controversy \>$75K; for federal question, claims must be brought under federal law
2. PJ → over all claimants
3. Venue → same rules as other federal cases
29
What are the **SMJ, PJ, and venue** requirements for **statutory** interpleader?
1. SMJ → one claimant diverse from \> one other claimant **(only minimal diversity required**) and amount in controversy \> greater than or equal to $500
2. PJ → exists as long as claimants are in the US
3. Venue → proper in any district where any claimant resides
30
# Define
permissive counterclaims
Claims that **do not** arise out of the transaction or occurrence as the original claim
31
# Define
cross-claim
Claims filed against a co-party (i.e. someone on the same side of the v). Must arise out of the **same transaction or occurence**
## Footnote
Ex. Ian sues Max and Carly. Carly can file a cross-claim against Max as long as it arises out of the same transaction or occurence
32
# Define
compulsory counterclaims
Claims filed **by the D against the P** that arise out of the **same transaction or occurrence** as the original claim
33
What are the **general** **requirements** for a **Rule 24 intervention**?
Permitted when
* Right is granted by **federal statute**; or
* Party has an **interest** relating to the subject matter of the action and **would not be able protect their interest** w/o intervention .
## Footnote
FRCP 24
34
What are the three **types** of class actions under **Rule 23(b**)?
1. When separate actions would create a risk of **inconsistent judgments** or judgments that would **substantially impair** the ability of a non-party member to **protect his interests** ([Rule 23(b)(1)](https://www.law.cornell.edu/rules/frcp/rule_23))
2. When the class seeks **injunctive or declaratory** relief (not damages) ([Rule 23(b)(2)](http://www.law.cornell.edu/rules/frcp/rule_23))
3. **Most common:** When a class seeks **damages** and questions of law or fact common to class members predominate over any questions affecting individual members, so that a **class action is superior to individual suits**. ([Rule 23(b)(3)](http://www.law.cornell.edu/rules/frcp/rule_23))
35
What **two steps** does the court take to determine where a **class action is appropriate**?
1. Does a class fulfill the **four requirements** under **Rule 23(a**)?
1. the class is so numerous that joinder of all members is impracticable;
2. there are questions of law or fact common to the class;
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
4. the representative parties will fairly and adequately protect the interests of the class.
2. If yes: Determine what **type** of class, considering:
* 23(b)(1)
* 23(b)(2)
* 23(b)(3)
36
For a class action, when claims arise under **state law** and parties are citizens of different states that have different laws on the claims, is **commonality** defeated?
Likely yes
## Footnote
⚠️ Note: This scenario is frequently tested on the MBE
37
What are the **6 methods** of discovery?
1. Mandatory disclosures;
2. Interrogatories;
3. Request for Admissions;
4. Request for Documents and Tangible Items;
5. Requests for Mental or Physical Examinations; and
6. Depositions
38
Where can I **watch a video** or **listen to a podcast** of these bar prep questions?
[Brainscape's "Hands-free" Bar Prep YouTube playlist](https://www.youtube.com/watch?v=16iLSk4leLM&list=PLnnMeFOl2XiVey4fhTQYcxA8yQB8W0Ohp)
[Brainscape's "Hands-free" Bar Prep Podcast](https://www.brainscape.com/academy/best-podcast-law-students/)
| Rate this card a five if you don't need to see it again.
39
What **pretrial disclosures** are required related to **expert** and **lay** witnesses?
* **Expert:** List of all **expert witnesses** and any info used to form the basis of their opinion. (FRCP 26(a)(2))
* **Lay**: List of all witnesses and documents that will used as exhibits at trial (FRCP 26(a)(3))
## Footnote
**Deadline**: at least **90 days** before trial for expert witnesses
40
# Define
depositions
Proceedings held in the course of discovery (before a trial) where a witness is questioned orally by an attorney **under oath**
41
What are the rules on deposing a **corporation**?
Party can **subpoena** a corporation.
Corporation/entity must then **designate** one or more **officers, directors, or managing agents**, or other persons to testify on its behalf about **information known or reasonably available to the organization**
42
# Define
interrogatories
Written questions used for disclosure of routine information (25 max)
## Footnote
[FRCP 33](https://www.law.cornell.edu/rules/frcp/rule_33)
43
What are **requests for production** and the **deadline** for response?
Request for **documents, tangible evidence and electronic evidence**
Deadline: **30 days** after request served
## Footnote
[FRCP 34](https://www.law.cornell.edu/rules/frcp/rule_34)
44
What are **requests for admissions** and how can a party respond?
Requests for parties to **admit the truth** of certain evidence
Response options:
* **Admit** information is true
* **Deny** information is true
* Explain why party cannot admit or deny
* **Object** to request
## Footnote
[FRCP 36](https://www.law.cornell.edu/rules/frcp/rule_36)
45
A party **can compel** another party to ____________ under Rule 37(a)
* **Answer questions** in a **deposition**
* If a **corporate defendant**, to **designate** an individual for purposes of deposition
* **Answer** an **interrogatory**
* **Produce** documents or **permit inspection** of documents
46
What is the effect of an attorney signing discovery disclosures pursuant to **R****ule 26(g)**?
Certifies that the disclosures are:
* Complete and correct (mandatory disclosures only);
* Consistent with the rules;
* Warranted by existing law;
* Not made for an improper purpose; and
* Not unreasonably burdensome
## Footnote
(Discovery counterpoint to Rule 11)
47
What does it mean if a case is dismissed **with prejudice**?
**Without** prejudice?
**With prejudice**: adjudication on the merits, cannot relitigate
**Without prejudice**: no adjudication on the merits, can religitate
48
What is a **12(b)(6) motion to dismiss**?
A motion to dismiss the case before discovery because the **P has failed to state a claim upon which relief can be granted**.
49
Upon what conditions will a motion to dismiss be granted?
* Generally, it will be granted when a complaint does not contain enough **specific allegations** to make it **plausible** that P could be **entitled to relief**.
* Exception: Remember that claims of fraud or mistake must be pled with **particularity**, rather than only plausibilty.
50
Involuntary dismissal under 41(b) is ____ prejudice
**With** prejudice
51
Difference between a **default** and a **default judgment**?
Default = D's failure to respond (stage 1)
Default judgment = judgment entered into the record after D defaults (stage 2)
52
To prevail on a motion for summary judgment, the moving party must:
Make a **prima facie** showing that:
1. **No genuine issue of material fact exists**; and
2. Moving party is **entitled to judgment as a matter of law**
53
**After** the moving party shows that summary judgment is proper, what is the **second step**?
**Burden then shifts** to non-moving party to **present evidence** showing that a **genuine issue of material fact exists**
54
**Deadline** for motion for summary judgment
**30 days** after discovery has ended
55
How can a party **demand** a **jury trial?**
1. File a written demand within **14** days after the last pleading; and
2. Properly **serve** to the other parties
56
What are **challenges for cause** and **how many** does each side have?
Used to dismiss a potential juror due to **bias;** unlimited number per side
57
What are **peremptory challenges?**
Used to dismiss jurors, reason does not need to be articulated as long as it is **race and gender neutral**.
58
Deadline for a party to **propose jury instructions**?
Generally, **b****efore the close** of all evidence presented to the jury.
**However,** a party can file **after** close of evidence if either:
1. instructions are for issues **not reasonably anticipated**, or
2. court has given **permission** to untimely file (can propose for any issue)
## Footnote
[FRCP 51](https://www.law.cornell.edu/rules/frcp/rule_51)
59
# Define
**judgment as a matter of law**
## Footnote
(also called a "directed verdict" or JMOL)
Ruling entered by judge against a party if a party **lacks sufficient evidence** to prevail on an issue necessary to a particular claim or defense
## Footnote
[FRCP 50(a)](https://www.law.cornell.edu/rules/frcp/rule_50)
60
When can **D** file for judgment as a matter of law? **P**?
Both parties: **before** case is submitted to jury
D: Either **after close of P's evidence** or **after close of all evidence**
P: **After close of all evidence**
61
# Define
**renewed motion** for **judgment as a matter of law** (RJMOL)
## Footnote
(also called "judgment notwithstanding the verdict" or JNOV)
If a party loses on a JMOL, they can make a renewed motion for JMOL ("RJMOL") within **28 days** after entry of judgment
## Footnote
⚠️ Note: Party must have properly & timely filed a JMOL to seek an RJMOL
[FRCP 50(b)](https://www.law.cornell.edu/rules/frcp/rule_50)
62
**Deadline** for all **post-trial motions**? (generally)
28 days
63
In ruling on a **RJMOL**, the court may:
1. Allow the **verdict to stand**;
2. Order a **new trial**; or
3. Direct entry of **judgment as a matter of law** (if reasonable people could not agree that the verdict was correct)
64
When is a **motion for relief from judgment** under Rule 60(b) proper?
* There is mistake, inadvertence, surprise, excusable neglect;
* Newly discovered evidence;
* Misrepresentation, misconduct, or fraud
* Judgment has been satisfied, released, or discharged;
* Judgment is void; or
* Any other reason that justifies relief
65
What is the **deadline** for filing a **motion for relief from judgment**?
Within **one year of final judgment** if for:
* Mistake, inadvertence, surprise, excusable neglect
* Newly discovered evidence
* Misrepresentation, misconduct, or fraud
Within a reasonable period of time if:
* Judgment is satisfied, released, or discharged
* Judgment is void
* Any other reason that justifies relief
66
What are examples of **juror misconduct**? What happens if misconduct is found?
* Introducing or using evidence gained **outside** of trial
* Improperly communicating with **outside parties**
* Giving **dishonest testimony** during voir dire
If found, court may order a **new trial**.
67
**Deadline** to file a **notice of appeal**?
Within **30 days** of the final judgment or order being appealed
68
# Define
final judgment rule
Appeals court can only hear cases with a **final judgment on the merits of the whole case** (i.e. there is nothing left for the court to address)
## Footnote
⚠️ Exception: if there is a basis for an interlocutory appeal
69
What interlocutory orders are appealable as a **matter of right?**
* **Injunctive** orders
* Orders appointing or refusing to appoint a **receiver**
* Orders directing the sale or disposal of **property**
* **Patent** order that is final except for accounting
* Order **denying** **arbitration** (9 USC § 16)
## Footnote
[28 USC § 1292](https://www.law.cornell.edu/uscode/text/28/1292)
70
List the **s****tandards of review** used by appellate courts
* De Novo (legal rulings)
* Clearly Erroneous (factual findings)
* Abuse of Discretion (discretionary rulings)
* Plain Error (an error that the parties did not preserve by objecting to it at the time it occurred)
71
What are the required **elements** of **claim preclusion**?
1. A **valid final judgment on the merits**;
2. **Same parties** (same P against same D); and
3. **Same** **claims** (arising out of same transaction or occurence);
72
What is a **valid final judgment on the merits**?
1. Court had valid **SMJ, PJ, & venue**;
2. Judgment was **final**; and
3. Judgment was made on the **merits**
73
What are the **requirements** of **issue preclusion**?
1. **Same issue** was **actually litigated** and determined;
2. Issue was **essential to the judgment** (ie if decided on in the opposite way it would change the result of the case);
3. Valid final **judgment on the merits;**
4. Party against whom preclusion is asserted must have had a **full and fair opportunity to litigate** the issue in the first suit
74
What is **non-mutual defensive** collateral estoppel and when is it allowed?
When a new D seeks to assert a final judgment decided in a prior suit against P.
Only allowed if **P had a full chance to litigate** the issue previously.
75
What is **non-mutual offensive** collateral estoppel?
P tries to prohibit D from relitigating issue D previously lost against another P
## Footnote
⚠️ Note: Rarely granted
MBE Rapid Fire
flashcards
Decks in class (8)
# Cards
