MBE Civil Procedure 2025
forum non-convenient - answer Federal law has codified the common law doctrine of
forum non convenient insofar as it affects transfers between federal district courts.
Application of the common law doctrine is largely confined to dismissal of actions that
would be more appropriately tried in the court of a foreign country. It is not applicable to
the transfer of an action from one federal court to another
Forum non conveniens is a common-law doctrine that allows a court to dismiss an
action—even if personal jurisdiction and venue are otherwise proper—if the court finds
that the forum would be too inconvenient for parties and witnesses, and that another
more convenient venue is available. The appropriate way to enforce a forum-selection
clause pointing to a state or foreign forum is to seek dismissal through the doctrine of
forum non conveniens.
*****a federal court does not have the power to transfer an action to a state court.
Compulsory Counterclaim - answerWhen a party fails to bring forth a compulsory
counterclaim the party waives the right. However,if, instead of filing a pleading (i.e., an
answer) in the action and the party files a motion to dismiss (and its granted), the party
is not barred from bringing the compulsory counterclaim in the future.
**Compulsory counterclaims and the joinder of additional parties to compulsory
counterclaims fall within the court's supplemental jurisdiction.
Removal Problems - answerA case may be removed from state to federal court if notice
of removal is file within 30 days of service of the document that first makes the case
removable and for cases based on diversity jurisdiction it may not be made after one
year after the case has commenced; All defendants agree; and it could have originally
been brought in federal court. Further, in cases based on diversity jurisdiction, the case
may be removed only if no defendant is a citizen of the state in which the action was
filed.
If at any time before final judgment it appears that the district court lacks SMJ, then the
court must remand the case. However, if a party seeks to remand the case on any other
basis, the plaintiff must make the motion within 30 days of filing the notice of removal.
Under Section 1441(a) of the removal statute, an action may be removed to the federal
court in the district where the state action is pending. That removal statute determines
venue, regardless of whether venue would have been proper under the venue statute
(Section 1391) if plaintiff had originally brought the action in that federal district court.
,****only those defendants against whom the federal claim is asserted must join in or
consent to the removal.
**Plaintiff can't remove
****Once a defendant files a notice of removal, the case is automatically transferred to
federal court. Subsequently, the court may remand a claim to the state court if the court
determines that it lacks subject matter jurisdiction over the claim, or the defendant failed
to follow proper procedures in removing the action to federal court.
Service of Process Problems - answerThe federal rules mandate that, unless formal
service is waived, a process server must submit proof of service to the court. However,
the failure to make proof of service does not affect the validity of the service.
21 days to file a motion to dismiss for improper service after a D is served.
Under the federal rules, service may be made by following state law for serving a
summons in an action brought in courts of general jurisdiction in the state where the
district court is located (the forum state) or in the state where service is made.
Due process is met if the notice is reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of an action and afford them an
opportunity to present their objections. If the identity and address of an interested party
are known or obtainable through reasonable efforts, then notice through in-person
delivery, registered mail, return receipt requested, or some other means likely to notify
the particular individual is required. Notice by publication under such circumstances
would not be sufficient.
While state law might provide for notice by publication, federal law controls regarding
whether such notice is constitutionally sufficient.
Motion to Dismiss Problems - answerIn ruling on a motion to dismiss for failure to state
a claim upon which relief can be granted, the court must take all well-pleaded facts in
the complaint as true and resolve all doubts and inferences in the complainant's favor.
A case will be tried by the court without a jury if no right to a jury trial exists (or if it has
been waived). The court is the finder of fact; it must find the facts specially and state its
conclusions of law separately. The findings and conclusions may be stated on the
record after the close of the evidence or may appear in an opinion or a memorandum of
decision filed by the court.
The court is not required to state findings or conclusions when ruling on a motion under
Rule 12 (motions against the complaint) or 56 (summary judgment) or, unless the rules
provide otherwise, on any other motion.
, ****unlike lack of personal jurisdiction or improper venue, the defense of failure to state
a claim upon which relief can be granted may be raised in any pleading or at trial.
Pleadings- Affirmative Defense - answerAn answer must not only admit or deny the
allegations of the plaintiff's complaint but also state applicable affirmative defenses,
including the Statute of Frauds. Those affirmative defenses not stated in the defendant's
answer are deemed waived.
Number of Jurors - answerUnder the Federal Rules of Civil Procedure, a verdict must
be unanimous and must be returned by a jury of at least six members, unless the
parties stipulate otherwise. A case may be tried before and a verdict returned by less
than a six-member jury, if the parties so stipulate.
An individual who has been selected to serve as a juror must participate in the verdict
unless excused for good cause, such as illness, family emergency, or misconduct.
***FRE will always apply in federal court on this issue
JMOL Problems - answerUnder Rule 50(a), once a party has been fully heard on an
issue at a jury trial, the court may grant a motion for judgment as a matter of law
resolving the issue against a party, if the court finds that there is insufficient evidence for
a jury to reasonably find for that party.
The court must view the evidence in the light most favorable to the opposing party and
draw all reasonable inferences from the evidence in favor of the opposing party. It may
not consider the credibility of witnesses or evaluate the weight of the evidence, and it
must disregard all evidence favorable to the moving party that the jury is not required to
believe.
In a jury trial, a party may move for a judgment as a matter of law with regard to a
defense as well as a claim. A party may make such a motion once the opposing party
has been fully heard on the issue.
Abuse of Discretion SOR - answerA court's determination of the admissibility of
evidence is within the court's discretion and is subject to review under the abuse of
discretion standard.
Erie Doctrine Problems - answerGenerally, a federal court with diversity jurisdiction over
an action is required to apply state substantive law, such as a statute of limitations, but
is not required to apply a state procedural rule. However, when that state procedural
rule determines the applicability of the state statute of limitations, the federal court must
apply the state procedural rule.
In diversity actions, a federal district court is generally bound by the conflict-of-law rules
of the state in which the district court is located. Questions about the burden of proof are
forum non-convenient - answer Federal law has codified the common law doctrine of
forum non convenient insofar as it affects transfers between federal district courts.
Application of the common law doctrine is largely confined to dismissal of actions that
would be more appropriately tried in the court of a foreign country. It is not applicable to
the transfer of an action from one federal court to another
Forum non conveniens is a common-law doctrine that allows a court to dismiss an
action—even if personal jurisdiction and venue are otherwise proper—if the court finds
that the forum would be too inconvenient for parties and witnesses, and that another
more convenient venue is available. The appropriate way to enforce a forum-selection
clause pointing to a state or foreign forum is to seek dismissal through the doctrine of
forum non conveniens.
*****a federal court does not have the power to transfer an action to a state court.
Compulsory Counterclaim - answerWhen a party fails to bring forth a compulsory
counterclaim the party waives the right. However,if, instead of filing a pleading (i.e., an
answer) in the action and the party files a motion to dismiss (and its granted), the party
is not barred from bringing the compulsory counterclaim in the future.
**Compulsory counterclaims and the joinder of additional parties to compulsory
counterclaims fall within the court's supplemental jurisdiction.
Removal Problems - answerA case may be removed from state to federal court if notice
of removal is file within 30 days of service of the document that first makes the case
removable and for cases based on diversity jurisdiction it may not be made after one
year after the case has commenced; All defendants agree; and it could have originally
been brought in federal court. Further, in cases based on diversity jurisdiction, the case
may be removed only if no defendant is a citizen of the state in which the action was
filed.
If at any time before final judgment it appears that the district court lacks SMJ, then the
court must remand the case. However, if a party seeks to remand the case on any other
basis, the plaintiff must make the motion within 30 days of filing the notice of removal.
Under Section 1441(a) of the removal statute, an action may be removed to the federal
court in the district where the state action is pending. That removal statute determines
venue, regardless of whether venue would have been proper under the venue statute
(Section 1391) if plaintiff had originally brought the action in that federal district court.
,****only those defendants against whom the federal claim is asserted must join in or
consent to the removal.
**Plaintiff can't remove
****Once a defendant files a notice of removal, the case is automatically transferred to
federal court. Subsequently, the court may remand a claim to the state court if the court
determines that it lacks subject matter jurisdiction over the claim, or the defendant failed
to follow proper procedures in removing the action to federal court.
Service of Process Problems - answerThe federal rules mandate that, unless formal
service is waived, a process server must submit proof of service to the court. However,
the failure to make proof of service does not affect the validity of the service.
21 days to file a motion to dismiss for improper service after a D is served.
Under the federal rules, service may be made by following state law for serving a
summons in an action brought in courts of general jurisdiction in the state where the
district court is located (the forum state) or in the state where service is made.
Due process is met if the notice is reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of an action and afford them an
opportunity to present their objections. If the identity and address of an interested party
are known or obtainable through reasonable efforts, then notice through in-person
delivery, registered mail, return receipt requested, or some other means likely to notify
the particular individual is required. Notice by publication under such circumstances
would not be sufficient.
While state law might provide for notice by publication, federal law controls regarding
whether such notice is constitutionally sufficient.
Motion to Dismiss Problems - answerIn ruling on a motion to dismiss for failure to state
a claim upon which relief can be granted, the court must take all well-pleaded facts in
the complaint as true and resolve all doubts and inferences in the complainant's favor.
A case will be tried by the court without a jury if no right to a jury trial exists (or if it has
been waived). The court is the finder of fact; it must find the facts specially and state its
conclusions of law separately. The findings and conclusions may be stated on the
record after the close of the evidence or may appear in an opinion or a memorandum of
decision filed by the court.
The court is not required to state findings or conclusions when ruling on a motion under
Rule 12 (motions against the complaint) or 56 (summary judgment) or, unless the rules
provide otherwise, on any other motion.
, ****unlike lack of personal jurisdiction or improper venue, the defense of failure to state
a claim upon which relief can be granted may be raised in any pleading or at trial.
Pleadings- Affirmative Defense - answerAn answer must not only admit or deny the
allegations of the plaintiff's complaint but also state applicable affirmative defenses,
including the Statute of Frauds. Those affirmative defenses not stated in the defendant's
answer are deemed waived.
Number of Jurors - answerUnder the Federal Rules of Civil Procedure, a verdict must
be unanimous and must be returned by a jury of at least six members, unless the
parties stipulate otherwise. A case may be tried before and a verdict returned by less
than a six-member jury, if the parties so stipulate.
An individual who has been selected to serve as a juror must participate in the verdict
unless excused for good cause, such as illness, family emergency, or misconduct.
***FRE will always apply in federal court on this issue
JMOL Problems - answerUnder Rule 50(a), once a party has been fully heard on an
issue at a jury trial, the court may grant a motion for judgment as a matter of law
resolving the issue against a party, if the court finds that there is insufficient evidence for
a jury to reasonably find for that party.
The court must view the evidence in the light most favorable to the opposing party and
draw all reasonable inferences from the evidence in favor of the opposing party. It may
not consider the credibility of witnesses or evaluate the weight of the evidence, and it
must disregard all evidence favorable to the moving party that the jury is not required to
believe.
In a jury trial, a party may move for a judgment as a matter of law with regard to a
defense as well as a claim. A party may make such a motion once the opposing party
has been fully heard on the issue.
Abuse of Discretion SOR - answerA court's determination of the admissibility of
evidence is within the court's discretion and is subject to review under the abuse of
discretion standard.
Erie Doctrine Problems - answerGenerally, a federal court with diversity jurisdiction over
an action is required to apply state substantive law, such as a statute of limitations, but
is not required to apply a state procedural rule. However, when that state procedural
rule determines the applicability of the state statute of limitations, the federal court must
apply the state procedural rule.
In diversity actions, a federal district court is generally bound by the conflict-of-law rules
of the state in which the district court is located. Questions about the burden of proof are
