MBE One Sheets

Question 1

JURISDICTION AND VENUE

Answer 1

Personal jurisdiction: about fairness to D.
* General jurisdiction: P can sue D for anything generally.
* Look for consent (express/implied due to failure to properly object), presence (continuous & systematic contacts w/ state/present in state when served), or domicile.
» Person is domiciled in the state that is her permanent home where she intends to stay indefinitely.
» Corporation is domiciled in the state where it is incorporated and where its principal place of business is located.
» A partnership or LLC is domiciled where its partners or members are citizens.

Question 2

JURISDICTION AND VENUE:

Specific jurisdiction:

Answer 2

• Lawsuit must arise out of specific contacts w/ state (ex. tort committed in state/K/business transaction arising out of contacts w/ state).
• It must be both constitutional under the state constitution (long-arm statute) & under Due Process Clause (there must be minimum contacts w/ forum state so as not to offend “traditional notions of fair play & substantial justice”).

Question 3

JURISDICTION AND VENUE:

SMJ; FQ; DC

Answer 3

Subject-matter jurisdiction: about power of fed ct to hear a certain kind of case.
* Federal-question jurisdiction: It must arise out of federal law. The federal issue must be on the face of the** well-plead complaint**.
* Diversity jurisdiction: there must be complete diversity at the time the case is filed & amount in controversy must exceed $75,000.
* Supplemental jurisdiction: State claims may be brought in a federal case if they arise out of a common nucleus of operative fact. Further, nondiverse parties may be sued in a diversity case.
* Tip: in a diversity case, D may implead a nondiverse party, but P may not sue a nondiverse party directly if the only basis for the lawsuit is diversity.

Question 4

JURISDICTION AND VENUE:

Removal & Remand

Answer 4

• Removal: D may remove a case w/in 30 days of being on notice that the case is removable (but not over a year in diversity cases unless P acted in bad faith).
• Ds cannot remove on diversity grounds if any D is domiciled in state in which they are sued.
• Tip: When D removes a case, do not look to traditional venue rules to determine venue.
• D has only one venue option—it may remove the action to the federal court that geographically embraces the state court where the suit was filed.
• Remand: if P wishes to file a motion to remand to state court due to failure to comply with procedure requirements of the rule, it must do so within 30 days after removal.

Question 5

Venue:

Answer 5

• The state has personal jurisdiction over D. Where in the state does P sue?
• Venue is proper where any D resides if all Ds reside in same state/where a substantial part of the events/omissions giving rise to the claim occurred.
• A court may transfer a case to a different venue in certain circumstances:
• (1) Transfer to proper venue: Occurs if the case is filed in the wrong venue. The law of transferee court applies.
• (2) Transfer to more appropriate forum: Occurs when there is a more convenient forum for the case. The federal court may transfer it in the interests of justice. Law of the transferor court applies.
• (3) Forum non conveniens: if a case should be litigated in a different forum (ex. different country) a court may dismiss the case.

Question 6

Service:

Answer 6

• P must serve D w/ summons & copy of the complaint
• Process server must be at least 18 & not a party
• P can use the following (SAID) methods to serve an individual:
• (1) state law: state law methods where the fed ct is located/where service is made,
• (2) agent: deliver copy of the summons & complaint to agent appointed by D/law,
• (3) individual: deliver a copy of S&C to Individual personally, or
• (4) dwelling: leave a copy of S&C at individual’s dwelling/usual place of abode w/ someone of suitable age & discretion who resides there.
• Serving a corporation: P may use state law methods where district ct is located/where service is made, or it may serve an officer, a managing/general agent authorized, or any other agent appointed to receive service.
• Waiver: P may ask a D to waive formal SOP by sending complaint, 2 copies of waiver form, & prepaid means for returning form via first-class mail/other reliable means. If D waives formal service, it has 60 days to answer complaint (rather than 21). If D does not, must pay for formal service of process.

Question 7

PRETRIAL PROCEDURES

Answer 7

• Pretrial procedures—this tells you what to file & how to prepare your case
• Complaint & answer
• Complaint must be served w/in 90 days after filing.
• Response (answer/motion) must be served within 21 days (or 60 if process was waived) after complaint is served.
• Pleading may be amended as of right w/in 21 days after service (or if pleading requires a responsive pleading, 21 days after service of the responsive pleading/motion).
• After 21 days, a party may amend its pleadings w/ consent of other party/court. Court will freely give leave when justice so requires.

Question 8

PRETRIAL PROCEDURES: Joinder of claims and parties - Claims

Answer 8

• Joinder of new claims: Once party has one properly filed claim, it can bring all claims if court has jurisdiction.
• This applies to P’s claims & D’s counterclaims (suing P)/cross-claims (D v. D or P v. P).
• Counterclaims: Compulsory counterclaims - D must bring a counterclaim if it arises out of the same transaction/occurrence/D loses right to bring claim later.
• A permissive counterclaim (one not arising out of the same transaction/occurrence) may be filed but does not have to be filed.
• Cross-claims: A cross-claim is a claim asserted by one party against coparty (D v. D or P v. P). It must arise out of same transaction/occurrence as initial claim. A cross-claim is not compulsory.

Question 9

PRETRIAL PROCEDURES: Joinder of claims and parties - Parties

Answer 9

Joinder of parties
- Ps joining Ps: Ps may sue together if they assert a right to relief jointly, severally, or in alternative w/ respect to claims arising out of same transaction/occurrence & involving a common question of law/fact.
- D adds D: D may implead a new claim against a new party if that party may be liable to D for part/all of recovery.
- Must be filed w/in 14 days of serving answer, otherwise leave of ct is required.
- Intervention: Movant may intervene as a* matter of right* if:
- (1) it has an interest related to property/transaction that is the subject of the action,
- (2) disposition w/o movant may impair/impede movant’s ability to protect its interest, and
- (3) its interest is not adequately represented by existing parties. The motion must be timely made.
- Court may grant permissive intervention if party has a claim/defense that shares a common question of law/fact w/ the main action.
» Interpleader: Occurs when holder of property subject to conflicting claims (usually an insurance company that holds a common fund) may file a lawsuit as P & join all claimants to avoid possibility of double liability.
- Under statutory interpleader, $500 is enough & minimal diversity is enough (if there is diversity between any 2 claimants) to get into fed court.

Question 10

PRETRIAL PROCEDURES: Class Actions

Answer 10

• Class actions: Requirements include: commonality, adequacy, numerosity, typicality, & (w/ common question suits) Ps need to show superiority & that common questions predominate.
• The Class Action Fairness Act (CAFA) allows a fed ct to have jurisdiction over a class action if there are 100/more Ps seeking over $5 million & they have minimal diversity.

Question 11

PRETRIAL PROCEDURES:: Preliminary measures:

Answer 11

• For TRO, notice to other party is not needed. Should not last longer than 14 days unless good cause is shown.
• For preliminary injunction, notice must be given to adverse party. A preliminary injunction is equitable relief to preserve status quo.

Question 12

PRETRIAL PROCEDURES: Discovery:

Answer 12

• Parties may discover anything that is relevant & not privileged.
• Parties can use interrogatories (25 per side), depositions, & requests to admit. Tip: depositions & subpoenas are the only methods that may be used on a nonparty.
• Work product (prepared in anticipation of litigation) is not discoverable unless there is a substantial need & undue hardship. However, an attorney’s mental impressions are never discoverable.
• Conferences & disclosure
• 26(f) conference: In fed ct, 26(f) conference is where initial disclosures of (DISS) damages calculation, insurance agreements, identity of supporting witnesses, & supporting docs are made & discovery plan is outlined. Tip: unfavorable witnesses/docs do not need to be disclosed.
• 16(b) conference: Next, 16(b) scheduling conference is held. Court enters a scheduling order & deadlines for motions.
• Pretrial disclosures: 30 days before trial, parties must disclose identity & reports of experts, names of witnesses to be called at trial, & docs & depositions parties plan to offer at trial.

Question 13

PRETRIAL PROCEDURES: Rule 11 Sanctions

Answer 13

• Rule 11 sanctions are made if improper paper is presented to court.
• However, if motion is made by a party to impose Rule 11 sanctions, party must give the other party 21 days to withdraw offending paper prior to filing motion w/ court.

Question 14

LAW APPLIED BY FEDERAL COURTS JURY TRIALS: State law in federal court:

Answer 14

• If a case is in fed ct under diversity jurisdiction, fed law
  generally applies to procedural issues.
• Tip: this includes FRE/FRCP, when to bring class action, & right to a jury trial.
• Generally, state law applies to substantive issues.
• Tip: this includes which party has the burden of proof, which SOLs applies, caps on damages, elements of claims, & choice of law rules.

Question 15

LAW APPLIED BY FEDERAL COURTS JURY TRIALS: Federal common law

Answer 15

• FCL is applied where Congress has given cts power to develop law (ex. bankruptcy law, admiralty, & civil rights) or where a fed rule is necessary & state law would frustrate fed objectives. (This latter category is very narrow & usually comes up when a case would directly affect U.S. gov)

Question 16

LAW APPLIED BY FEDERAL COURTS JURY TRIALS:

The Klaxon doctrine:

Answer 16

• Fed ct sitting in diversity must apply choice of law approach prevailing in the state where it sits. Tip: this is a** MBE favorite!**

Question 17

JURY TRIALS

Answer 17

• Jury trial 7th Amend: A jury pool must be taken from a cross section of the community. Tip: jury itself does not need to be diverse.
• Jury trial request: For an issue triable by jury, a party can demand a jury trial by serving other parties a written demand (which can be in a pleading) “no later than 14 days after last pleading directed to the issue is served.”
• A proper demand may be withdrawn w/ all parties’ consent.
• Number: A jury must begin with at least 6 & no more than 12 members. Unless the parties agree otherwise, verdict must be unanimous & returned by a jury of at least six.
• At close of evidence, a party may file & furnish to every other party written requests for jury instructions.
• Objecting to jury instructions: a party who objects to instructions must do so in a timely manner, on record, stating matter objected to & grounds.
• Plain error: an appellate ct may consider a plain error in instructions, even if it has not been properly preserved/objected to, if error affects substantial rights.

Question 18

MOTIONS MADE DURING AND AFTER TRIAL:

DIRECTED VERDICT
(JUDGMENT AS A
MATTER OF LAW—JMOL)

Answer 18

• If there is no substantial evidence to support a verdict for nonmoving party, a directed verdict will be given.
• The ct looks at whether P has met its burden of production.
• D may file this motion after P rests its case. Either party may file it after D rests its case.

Question 19

MOTIONS MADE DURING AND AFTER TRIAL:

RENEWED JMOL

Answer 19

• Under fed law, party must have already made a motion for JMOL at some point.
• Here, party is renewing it & must show evidence is insufficient as a matter of law to support jury’s verdict.
• Within 28 days of entry of the jury’s verdict

Question 20

MOTIONS MADE DURING AND AFTER TRIAL:

NEW TRIAL

Answer 20

• A new trial is granted if there were errors in the trial that tainted jury’s decision-making/if jury’s decision was against great weight of evidence.
• It also may be granted if verdict is excessive (i.e., remittitur) or inadequate (i.e., additur, which is not recognized by fed courts).
• Within 28 days of entry of jury’s verdict.
• Court may even order a new trial on its own.

Question 21

MOTIONS MADE DURING AND AFTER TRIAL:

RELIEF FROM JUDGMENT

Answer 21

• If there are circumstances like mistake, fraud, or new evidence that could not have been discovered, ct may grant relief from judgment.
• Generally, within one year of the judgment (but there are exceptions, e.g., fraud).

Question 22

MOTIONS MADE DURING AND AFTER TRIAL: APPEAL

Answer 22

• Final judgments generally are appealable (exceptions: preliminary injunctions, interlocutory orders, & collateral matters).
• Orders granting a directed verdict/denying a new trial are appealable.
• Generally, within 30 days after entry of judgment.

Question 23

Timing of Motions

Answer 23

1st: Complaint:
2nd: Bring in pre-answer motions:
- More definite statement
- Motion to strike

Question 24

Timing of Motions:

ANSWER OR MOTION

Answer 24

Bring in first answer/motion:
(1) Lack of personal jurisdiction
(2) Insufficient process/service
(3) Venue
(4) Affirmative defenses

Question 25

# Timing of Motions: TRIAL

Answer 25

Anytime **through trial**, following motions may be brought: (1) Failure to join a necessary party (2) Judgment on the pleadings (3) Failure to state a valid claim/defense

Question 26

# Timing of Motions: APPEAL

Answer 26

- Bring any time at all, even on appeal: (1) Lack of subject-matter jurisdiction

Question 26

DISPOSITIVE MOTIONS

Answer 26

- Motion for summary judgment: The question is whether there is a genuine issue of material fact. - Moving party must show there is **no genuine issue of material fact**. - Burden then shifts to nonmoving party, which must show **there is a genuine issue of material fact**. - Motion is looked at in light **most favorable to the nonmoving party**. - Tip: court will deny motion if case involves something subjective like **motive, intent, or credibility.** - Failure to state a claim upon which relief can be granted: - D brings this motion, stating that even if everything P says in its complaint is true, there is **no recognized violation of any legal rights.**

Question 27

VERDICTS AND JUDGMENTS

Answer 27

* Default is entered by a *clerk* if there is **no timely answer**. - Tip: Default itself does **not** give P any rights to collect money. P **must** seek a *default judgment*. * Default judgments are made by a *clerk* for a “**sum certain**” (& can be w/o notice) or *judge* (requires 7-days’ notice **if D has appeared**). * No progress dismissals: Usually are w/ prejudice. Tip: “with prejudice” means lawsuit **cannot** be refiled. * Involuntary dismissals (ex. failing to comply w/ court order) usually are w/ prejudice. * Voluntary dismissals by P generally are w/o prejudice. - Exception—2 dismissal rule: if P voluntarily dismisses a case twice, 2nd dismissal is w/ prejudice & P **cannot** refile lawsuit/one that arises out of same facts.

Question 28

RES JUDICATA (CLAIM PRECLUSION)

Answer 28

SAME CLAIM - Use ** transaction/occurrence test** : If it was/could have been asserted b/c it was part of same transaction /occurrence, it is the same claim. - Tip: compulsory counterclaims are also barred. SAME PARTIES - Parties **must** be the same/in privity. FINAL JUDGMENT ON THE MERITS - This means it is not modifiable (ex. child custody, alimony, etc.). - This includes a full trial, a dismissal w/ prejudice, claims decided on summary judgment or JMOL, or default/consent judgments. - Tip: a judgment may not look like it is “on the merits,” but it still may be considered to be for these purposes (ex. dismissal w/ prejudice for failing to comply w/ a discovery order is “on the merits”).

Question 29

RES JUDICATA (CLAIM PRECLUSION): Effect

Answer 29

- Effect of preclusion: The Full Faith & Credit Clause requires that judgments from state cts be given same effect in any other court that they would be given in the state in which they were handed down. - When determining preclusive effect of a prior judgment, look to law of court that decided it. - So, if a judgment would be held to have a nonpreclusive effect in the state it was handed down in, then it cannot have a preclusive effect in any other court.

Question 30

COLLATERAL ESTOPPEL (ISSUE PRECLUSION)

Answer 30

SAME ISSUE - Issues must be **exactly** the same. ACTUALLY LITIGATED - Issues need to be **actually raised & litigated**. ACTUALLY DECIDED - Issues need to be **actually decided** in trial. “NECESSARY” - Decision must be **“necessary” to the court’s judgment.** ## Footnote Note: Nonmutual collateral estoppel allows a party to invoke collateral estoppel against a party who litigated & lost on an issue in a prior action. Defensive nonmutual estoppel means issue preclusion may be raised as a shield by a new D. Some states do not allow offensive nonmutual collateral estoppel where it can be used as a sword by a new P (but federal law allows this).