Civil Procedure Bar Exam Outline

CIVIL PROCEDURE BAR EXAM OUTLINE I.

Jurisdiction and Venue a. Federal subject matter jurisdiction i. Federal question 1. Any clai claim m that that arises arises under under a federa federall law a. Claim Claim must must be be enforc enforcing ing fede federal ral righ right. t.  b. No diversity or amount is required. i. Compla Complaint int mus mustt be well well plea pleaded. ded. ii. Dive Diversit rsit  !Te !Tested "it# "it# $i%# $i%# &re'u &re'uenc enc( ( 1. Mus Mustt be comple complete te diver diversit sity y between between  and !. a. !eterm !etermine ined d by domi domicil cilee "peopl "peoplee have have one# one# i. !omici !omicile$ le$pres presence ence and and intent intent to to remain remain.. 1. %se last domicile domicile until another is establishe established. d. &. 'est 'est for for diversit diversity y at time time the the case is filed. filed. ii. (ncludes (ncludes alienage alienage "diff "different erent country v. %.). citi*e citi*en# n#  b. Corporations "can have two# domiciled where incorporated and+or ,. i. For --C$ --C$whe where re any of its its memb members ers live live.. &. Amount in controv controversy ersy must eceed /02333 "claim "claim only#. only#. a. Claim Claim mus mustt be be made made in goo good d fait faith. h.  b. 4ou 4ou can add two claims together to meet amount. iii. ii i. )u )u** **+e +e,e ,ent nta+ a+ 1. Additional Additional claim claimss may be brought brought in in federal federal court$even court$even if does not meet meet F5+diversity if claim arises from the same transaction and occurrence. &.  may may not add add new ! in in case if complete complete diversity diversity would be be violated. violated. a. )tatute )tatute may prevent prevent )6 in diversity diversity cases regarding regarding the the . . iv. Re,ova+ 1. ! may remove a case from state to federal federal court if proper proper.. a. ! must must do so withi within n 73 days days after after serv service ice.. i. Any case case involv involving ing F5+div F5+divers ersity ity 1. (n diversi diversity ty22 no removal removal if ! is sued sued in home state. state. a. No remov removal al if in in state state court court for for over over a year year.. -. Per Perso sona+ na+ ur urisd isdict iction ion i. 6 eists in state+federal court if state statutes and Constitutional requirements are satisfied. 1. 8ach state state is is free free to create create its own statute statutess for 6. &. Constituti Constitution on requires requires ! to have minimum minimum contacts contacts w+ forum. forum. a. 9eneral 9eneral person personal al jurisd jurisdict iction ion:: i. !efend !efendant ant is is domici domiciled led in the the forum forum ii. ii. !efe !efend ndant ant cons consen ents ts iii. iii. !efend !efendant ant is serv served ed with with process process in in the forum forum  b. )pecific personal jurisdiction i. Contact w+ forum forum "not systematic systematic and continuous;# continuous;# 1. ! purpos purposefu efull availed availed himse himself lf to the the forum forum.. &. Forese Foreseeabl eablee that that ! could could be sued sued in in the foru forum. m. 7. Claim arises arises from from !
II.

III.

i. rocess is the summons and complaint 1. Any non=party person over 1> can serve process. &. !elivery to person or agent at !
7. . . G. 0.

(mproper venue (mproper process "papers# (mproper service of process Failure to state a claim$rule 1&"b#G Failure to join indispensable party i. &2722 are waived if not in the first response. G. Counterclaims must be in answer !  a. Compulsory$arises out of the same '+ of 
IV.

 b. (mpleader$! may implead a person who was not an original party of the action and liable to the ! for any part of the judgment should  prevail. i. (ndemnity 1. 'hey did it ii. Contribution. 1. 'hey did some of it iii. Never compulsory c. (ntervention i. A party choses to come into the case as either a  or !. &. ermissive$does not have to be filed. f. Class actions i. Five requirements: 1. A numerous class of individuals "joinder impracticable# &. Common question of fact or law 7. Named representative from the class . Named rep2 must be able to ensure fair and adequate rep of class. %. Discover i. !isclosure 1. arties may discover anything not privileged if relevant to a claim or defense. a. Names and contact info of all witnesses to be used. i. 'he subject in which they have information on. &. A party does not have to alert other party to harmful information. 7. Attorney wor product not discoverable$unless there is a substantial need or undue hardship for party to obtain the material somewhere else. a. Automatic disclosure a party has a duty to disclose with party+court2 a list of all documents and ehibits it epects to offer. i. A party may tae depositions of another party on notice. 1. & written questions$party may as the court for more. ii. )anctions 1. Failure to provide automatic discloser is subject to sanctions$a party may be barred from introducing that evidence in trial. h. Adjudication w+o trial i. !ismissal 1. ?oluntary$ may do so any time before ! serves an answer. a.  may mae a motion anytime$not guaranteed after !
1. (f the parties fail to mae objections before the jury is given the instructions2 the  parties will not be able to raise objection on appeal unless there was plain error. V.

VI.

Motions a. retrial motions i. Face of the pleadings 1. Motion to dismiss for failure to state a claim@ court loos only at face of complaint. ii. Motion to dismiss 1. Eule 1&"b#G2 requires a complaint state a claim upon which relief can be granted. iii. )u,,ar ud%,ent !Tested "it# $i%# &re'uenc( 1. 9ranted if from pleadings H discovery material2 it appears there is no genuine dispute of material fact H the moving party is entitled to judgment as a matter of law. a. May be filed any time up to 73 days after the close of discovery. i. Maybe partial as to one or more issues in the case.  b. Motions for judgment as a matter of law i. !irected verdicts "6M-# 1. (s appropriate when a party has been heard in full and there is no legally sufficient evidentiary basis for a reasonable jury to find for the party. a. 6udge rules for a party.  b. Can be raised during trial or after trial as E6M-. i. E6M- can be filed &> days of entry of judgment "case is over#. 1.  Must have moved for JMOL previously. ii. 6udgment notwithstanding the verdict 1. Eeversal of a juryIs verdict by a judge$judge believes there was no factual basis for the verdict or it was contrary to law. c. ost=trial motions i. Eelief from judgment 1. As the court to set aside judgment on the grounds of: a. Clerical error2 Mistae2 New evidence2 or 6udgment is void@ no )M6 ii.  New trial 1. )ome error during trial requires that there should be a new trial. a. ,ad jury instructions2 juror misconduct2 or new evidence. Verdicts and Jud%,ents a. !efaults i. !efault judgment$! fails to defend action2 fails to respond to complaint in &1 days after service or G3 days from mailing of waiver.  b. (nvoluntary dismissals i.  fails to prosecute or comply w+ rules@ court may grant !
i. nce a cause of action has been litigated2 it may not be relitigated. 1. Final judgment rule$need valid final decision on the merits. &. )ufficiently identical causes of action a. riginal and new causes of action are the same. 7. )ufficiently identical parties a.  and ! are the same and in the same roles. 0. Issue *rec+usion i. nce an issue of fact has been determined in a proceeding b+t two parties2 they may not relitigate that issue even in a proceeding on a different cause of action. 1. Final judgment rule$need valid final decision on the merits. &. )ame issue$must be identical 7. !oes not have to be same parties against each other "one has to be same#. %. &ina+ ud%,ent ru+e 2 a**ea+ i. Appealable issues are commonly limited to final judgments. 'he final judgment rule2 gives  jurisdiction of appeals of final defcisions to the courts of appeals in most cases.