MBE Civ Pro

Failure to assert PJ in a pre-answer motion or in an answer waives this defense UNLESS:

D is asserted in an amended answer filed within 21 days after the original answer was served.

Service of process PROOF

The process server must file a proof-of service affidavit if the service was made in the US and not waived by D.

• HOWEVER, failure to prove service of process does not affect the validity of the service.

Motion to dismiss

A motion to dismiss for failure to state a claim is a request that the court dismiss the suit because the nonmovant’s complaint fails to assert a legally cognizable claim OR fails to allege facts that sufficiently support the claim.

The court considers complaint with the attached exhibits, the court must also:

• treat all well-pleaded facts in the complaint as true; and

• view evidence and draw all reasonable inferences in the light most favorable to the nonmovant

Federal court - supplemental jurisdiction

A federal court will generally exercise supplemental jurisdiction over claims that fall outside its original SMJ (i.e., federal-questions or diversity jurisdiction) if the claims share a common nucleus of operative facts with a claim within its original jurisdiction

Deposition

A deposition is a discovery method in which a party conducts a written oral examination of a party or non-party under oath and outside of court.

Interrogatories

are written questions served on another party that may inquire about any matter within the scope of discovery—but interrogatories cannot be served on a nonparty.

Motion for judgment as a matter of law (JMOL)

May be filed after nonmovant presents its case (does not matter if the movant has presented its case) but before the case is submitted to jury.

When considering such a motion, the court must:

• view the evidence and draw all reasonable inferences in light most favorable to the nonmovant

• Disregard any evidence favorable to the movant that the jury is not required to believe and

• not consider the credibility of witness or evaluate the weight of evidence

Renewed motion for judgment as a matter of law (JMOL)

may be renewed within 28 days after entry of final judgment

Collateral estoppel (issue preclusion)

precludes the relitigation of an issue that was actually litigated, determined, and essential to a valid final judgment on the merits. There are two types of collateral estoppel:

• Mutual—where parties (or privity to the party, like the company) from the first action assert collateral estoppel in a subsequent action against other parties from first action

• Nonmutual —where nonparties from the first action assert collateral estopple in a subsequent action against parties from the first action

Collateral estoppel (issue preclusion) continued

Both types are permitted in federal court and both can be used in a defensive or offensive manner.

• Defensive estoppel is used by D in the second action to avoid relitigating an issue from the first action.

• Offensive estoppel is used by a plaintiff in the second action to establish an issue from the first action.

Federal rule of civ. pro 4(k) provides a special rule:

“100 mile bulge rule” for federal courts to acquire personal jurisdiction over a party who is:

• added to the suit through impleader (i.e., third party practice) or required joinder and

• served with process within 100 miles of the federal court where the suit is pending—even if the party is served in another state

Venue for defendant who are nonresident of the US

When D is a nonresident of the US, venue is proper in any federal judicial district

Federal court - PJ

A federal court has the same personal jurisdiction as the courts of the state in which it is located (i.e., the forum state). If a nonresident D has not consented to a court’s personal jurisdiction, then PJ must be established through either general or specific jurisdiction.

Fed. Rule Civ. Pro 38 — Jury Demand

a party may demand a jury trial on any triable issue i.e., any legal claim where the amount in controversy exceeds $20—by:

• serving the other parties with a written jury trial demand no later than 14 calendar days after the last pleading directed to that issue is served

• Filing the jury trial demand with the court within a reasonable time after service demand.

Compel the attendance of another party or non-party (deponent)

To compel the attendance of another party or non-party (deponent), the deposing party must serve the nonparty deponent with a subpoena and the deposition conducted without court’s leave or the parties’ stipulation unless:

• the deposition exceeds the 10-deposition limit (which includes both oral and written depositions)

• the deposition is sought before the parties’ initial planning conference or

• the deponent was already deposed in the action

Final judgment Rule

bars federal appellate courts from hearing an appeal until the federal district court has entered a final judgment. A final judgment is a judicial decision that fully resolves the dispute on the merits and leaves nothing for the court to do but enforce the judgment.

Compulsory counterclaim

must be asserted in D’s answer if it:

• arises from the same transaction or occurrence as the plaintiff’s claim(s); and

• does not requires adding parties over whom the court cannot acquire jurisdiction

Failure to do so generally results in the counterclaim being waived and barred from being raised in subsequent lawsuits.

• BUT when an action is dismissed before D’s answer is filed, any counterclaims that would have been compulsory in an answer are not waived (i.e., D can bring this claim in a later action)

SMJ over Class action

when SMJ over a class action cannot be established through federal question or diversity jurisdiction, the Class Action Fairness Act (CAFA) provides an alternate basis to establish jurisdiction:

• the class contains at least 100 members

• any member is diverse from at least one D (i.e., minimal diversity) and

• the amount in controversy exceeds $5 million when the members’ claims are aggregated

A response from another party to an amended pleading

A party generally may amend its complaint once as a matter of course.

When this occurs (i.e., there is an amended pleading), a response to the amended pleading generally must be made by the later of the following deadlines:

• the time remaining to respond to the original pleading—e.g., an answer is generally due within 21 days after service of process

• 14 days after the service of the amended pleading

UNLESS the court ORDER otherwise

Challenging a jury instruction

To challenge a jury instruction on appeal, a party must preserve the issue by trial by timely objecting to the instruction on the record and stating the grounds for objection.

• an objection is timely if it is made promptly after learning that a jury instruction has been or will be given OR that a request for a jury instruction has been refused.

Correcting the district court’s mistake in a judgment

Before an appeal is docketed in the appellate court, a district court can correct a mistake in a judgment, order, or other part of the record on its own initiative or pursuant to a party’s motion.

• But after an appeal has been docketed, the district court can correct the mistake only with the appellate court’s leave

Seeking a relief from the final judgment

A party can seek extraordinary relief from a district court's final judgment in limited circumstances (see table above). This motion for relief may generally be made within a reasonable time, but it must be made within one year from the entry of the final judgment when the motion asserts any of the following grounds for relief:

• The judgment was due to mistake, inadvertence, surprise, or excusable neglect by the nonmovant or the court.

• The movant has discovered new evidence that could not have been discovered with reasonable diligence in time to move for a new trial—i.e., within 28 days of the final judgment.

• The nonmovant engaged in misrepresentation, misconduct, or fraud.

Choice of law - federal Diversity Jurisdiction Action

In a federal diversity action, the court must apply federal law to procedural issues and state law to substantive issues. To determine which state’s substantive law applies, a federal court must apply the choice of law rule of the state where it sits.

Choice of law in diversity cases when the issue is UNCLEAR

When the issue is unclear there is no federal law directly addressing the issue, the court must analyze which substantive law to apply using the erie analysis:

In such a case, the Erie analysis must be used to decide if a federal court should supplant state law with federal common law. Under this analysis, the issue will be considered substantive and state law will apply if it is outcome determinative AND there is no countervailing federal policy interest. State law is outcome determinative if failing to apply state law would result in:

• forum-shopping – litigants will be encouraged to sue in federal court to take advantage of benefits not afforded in state court or

• inequitable administration of the laws – the application of substantially different rules in federal and state court would cause unfair outcomes.

Choice of law in diversity cases when there is a conflict between the state and federal law

If a conflict exists, then the federal-rule analysis provides that a valid federal rule that directly addresses the issue applies if the rule:

• is arguably procedural and

• does not abridge, modify, or enlarge a substantive right.

Physical and Mental Examination

During discovery, the court where the lawsuit is pending may order a party to undergo a mental or physical examination by a suitably licensed or certified examiner.  This court order is valid when:

• mental or physical condition is in controversy

• the motion for the order is based on good cause and

• the order provides notice by specifying the time, place, manner, conditions, and scope of the exam, as well as the person who will perform it.

Failure to attend pre-trial conferences

A federal district court may order the attorneys and any unrepresented parties to attend one or more pretrial conferences to encourage effective case management, facilitate settlement (as seen here), and expedite litigation. To promote those goals, a district court may impose sanctions* that are reasonable under the circumstances—i.e., the punishment must fit the violation—on any party or attorney who:

• failed to attend a pretrial conference

• did not participate in good faith, or was substantially unprepared to participate, in the conference or

• failed to obey a pretrial order.

Challenges to potential jurors

Voir dire is the stage in a jury trial when the court, parties, or attorneys question potential jurors about their backgrounds and potential biases.  During this process, each party may strike potential jurors from serving on the jury through:

• three peremptory challenges – to strike a potential juror for any reason other than race, ethnicity, or gender without explanation (Choice A) and

• unlimited challenges for cause – to strike a potential juror based on his/her inability to serve as a fair and impartial finder of fact (e.g., financial stake in a party, bias, relation to party or party's counsel)

P need only respond to D’s answer by filing a reply if the court orders P to do so

​​​​​​​If the court orders a reply, then the plaintiff must respond to allegations in the defendant's answer as directed. 

• Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff. 

• If no reply is ordered, then allegations in the answer are deemed denied by the plaintiff.

Final judgement Appeal based on multiple claims or parties

Absent limited exceptions, a party may appeal only after the district court has entered a final judgment.

• When an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for delay.  However, if this express determination is not made, any court order that disposes of those claims or parties is not immediately appealable.

Impleader

Impleader (i.e., third-party practice) allows a defendant to add a nonparty (i.e., third-party defendant) to a suit who may be liable to the defendant for all (i.e., indemnity) or part (i.e., contribution) of the plaintiff's claim.  When this occurs, the plaintiff may assert his/her own third-party claim against the third-party defendant if that claim:

• arises out of the same transaction or occurrence that is the subject matter of the plaintiff's claim against the defendant in the original complaint and

• satisfies originalsubject-matter jurisdiction on its own.

Impleader practice

Impleader (i.e., third-party practice) allows a defendant to add a nonparty to a suit who may be liable to the defendant for all (i.e., indemnity) or part (i.e., contribution) of the plaintiff's claim.  This means that the nonparty would reimburse the defendant for any damages paid to the plaintiff. 

To initiate impleader, the defendant must file a third-party complaint (1) within 14 days of serving his/her original answeror (2) after this deadline with the court's leave (i.e., permission).

Service of Process Requirements

A defendant must receive notice of a lawsuit through service of process—i.e., delivery of the summons and complaint.  Under FRCP 4, a plaintiff can properly serve a defendant who is an individual located in the United States by:

• following the rules of the state where the court sits or where service is made

• having process delivered to the defendant personally (or to an agent authorized to receive process) or

• having process delivered to the defendant's dwelling and left with a resident of suitable age and discretion—i.e., old enough to possess the limited capacity necessary to comprehend the situation.

Appealing Class Action

​​​​​​​Federal Rule of Civil Procedure 23(f) provides such an exception for district court orders granting or denying class action certification. 

• A petition to appeal this order must be filed with the appellate court clerk within 14 days after the order is entered.* 

• The appellate court then has the discretion to permit the appeal from the district court order that granted or denied class action certification.

Interlocutory appeal

The final-judgment rule generally precludes federal appellate courts from hearing an appeal until the federal district court has entered a final judgment.  But the interlocutory appeals statute (28 U.S.C. § 1292) provides exceptions to this rule that allow certain equitable orders to be immediately appealed as a matter of right.  These include:

• orders granting, modifying, refusing, or dissolving injunctions

• orders appointing or refusing to appoint receivers and

• decrees determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

A violation of representations to court

A court can impose sanctions, including an order to pay the opposing party's attorney's fees, on a law firm (default), attorney, or party for violating one of the provisions of FRCP 11(b)—shown above.  Sanction proceedings can be initiated in two ways:

• by a party's motion – which requires the party to serve the motion on the alleged violator but refrain from filing it for 21 days after serving it to allow any violation to be corrected (i.e., safe-harbor rule) or

• on the court's own initiative (i.e., sua sponte) – which requires the judge to issue an order to show cause to the alleged violator.