MBE Civil Procedure Exam Questions with Correct Answers 100% Verified|
Guaranteed Success
Who Is a Necessary Party? If absentee meets any of these tests:
(1) Without A, court cannot accord complete relief among existing parties
(2) A's interest may be harmed if he is not joined
(3) A claims an interest that subjects a party to a risk of multiple obligations
Note: Joint tortfeasors never necessary
Can Necessary Party be Joined? If joinder is feasible - (1) PJ over them, (2) joining will not
destroy diversity. If feasible, court orders joinder
If Necessary Party Cannot be Joined Court must proceed w/o necessary party or dismiss the
case. Factors: (a) alternative forum ? (b) actual likelihood of harm, (c) can it shape relief to
avoid that harm?
If court decides to dismiss rather than proceed with, party is indispensible
Impleader D brings in someone new . New party is third-party def.
NEVER compulsory. Can only do this to shift liability he owes to P. (so usually for indemnity or
contribution)
Steps for Impleading (1) D files third party complaint naming def.
(2) Serve process on 3d party def.
,Right to implead within 14 days of serving answer, afterwards need court permission
Intervention Nonparty brings herself into the case as a P or D. May be realigned if comes in
on the wrong side
Intervention of Right A's interest may be harmed if she is not joined and is not adequately
represented now
Permissive Intervention A's claim or defense and the pending case have at least one
common question. Discretionary - usually allowed unless will cause delay or prejudice
Class Action - Initial Requirements (a) Numerosity - too many members for practicable
joinder, (b) Commonality - issue common to all members, (c) Typicality - rep.'s claims are typical
of those of class AND (d) representative adequate - will fairly and adequately represent class
ALL Must be met
Class Action - Types Must fit in one of three types:
(1) Prejudice - class treatment necessary to avoid harm to class members or non-class party
(2) Class seeks injunction or declaratory judgment because D treated class alike
(3) "Damages": (a) common q's predominate over individual q's AND (b) class action is superior
method to handle dispute
Class Action - Certification Court must certify the class - must define the class and class
claims, issues, or defenses. Must also appoint class counsel
Class Actions - Notification Must notify lass members in type (3), telling them can opt out,
bound if don't and can enter separate appearance through counsel.
, Class Actions - Diversity Use rep's citizenship - ignore other class members
Temporary Restraining Order Ex parte TRO proper ONLY IF (1) applicant files paper under
oath clearly showing will suffer immediate and irreperable harm and (2) lawyer certifies in
writing efforts to give oral/written notice to D
Must state terms in specificity. Effective for no more than 14 days. Can be extended add'l 14 if
good cause
D can ove to dissolve or modify TRO.
Preliminary Injuction Maintains status quo until court can adjudicate underlying claim.
NEVER ex parte.
Appellant must show: (1) likely to suffer irreparable harm, (2) likely to win on the merits, (3)
balance of hardship favors him and (4) injunction in public interest
Always discretionary. Must state its terms in specificity. Court must make specific findings of
fact and separate conclusions of law. Immediately appealable.
Pretrial Adjudication - Voluntary Dismissal P wants to withdraw. Can make motion anytime.
Right to take voluntary dismissal by filing notice of dismissal but must do so before def. serves
answer or motion for sum. judg. If timely, filed without prejudice, but can only do once.
Pretrial Adjudication - Default When D does not respond to complaint in time - default is
notation by court clerk on docket sheet of case. Not automatic, pl. must move for default - cuts
off def.'s right to respond
Guaranteed Success
Who Is a Necessary Party? If absentee meets any of these tests:
(1) Without A, court cannot accord complete relief among existing parties
(2) A's interest may be harmed if he is not joined
(3) A claims an interest that subjects a party to a risk of multiple obligations
Note: Joint tortfeasors never necessary
Can Necessary Party be Joined? If joinder is feasible - (1) PJ over them, (2) joining will not
destroy diversity. If feasible, court orders joinder
If Necessary Party Cannot be Joined Court must proceed w/o necessary party or dismiss the
case. Factors: (a) alternative forum ? (b) actual likelihood of harm, (c) can it shape relief to
avoid that harm?
If court decides to dismiss rather than proceed with, party is indispensible
Impleader D brings in someone new . New party is third-party def.
NEVER compulsory. Can only do this to shift liability he owes to P. (so usually for indemnity or
contribution)
Steps for Impleading (1) D files third party complaint naming def.
(2) Serve process on 3d party def.
,Right to implead within 14 days of serving answer, afterwards need court permission
Intervention Nonparty brings herself into the case as a P or D. May be realigned if comes in
on the wrong side
Intervention of Right A's interest may be harmed if she is not joined and is not adequately
represented now
Permissive Intervention A's claim or defense and the pending case have at least one
common question. Discretionary - usually allowed unless will cause delay or prejudice
Class Action - Initial Requirements (a) Numerosity - too many members for practicable
joinder, (b) Commonality - issue common to all members, (c) Typicality - rep.'s claims are typical
of those of class AND (d) representative adequate - will fairly and adequately represent class
ALL Must be met
Class Action - Types Must fit in one of three types:
(1) Prejudice - class treatment necessary to avoid harm to class members or non-class party
(2) Class seeks injunction or declaratory judgment because D treated class alike
(3) "Damages": (a) common q's predominate over individual q's AND (b) class action is superior
method to handle dispute
Class Action - Certification Court must certify the class - must define the class and class
claims, issues, or defenses. Must also appoint class counsel
Class Actions - Notification Must notify lass members in type (3), telling them can opt out,
bound if don't and can enter separate appearance through counsel.
, Class Actions - Diversity Use rep's citizenship - ignore other class members
Temporary Restraining Order Ex parte TRO proper ONLY IF (1) applicant files paper under
oath clearly showing will suffer immediate and irreperable harm and (2) lawyer certifies in
writing efforts to give oral/written notice to D
Must state terms in specificity. Effective for no more than 14 days. Can be extended add'l 14 if
good cause
D can ove to dissolve or modify TRO.
Preliminary Injuction Maintains status quo until court can adjudicate underlying claim.
NEVER ex parte.
Appellant must show: (1) likely to suffer irreparable harm, (2) likely to win on the merits, (3)
balance of hardship favors him and (4) injunction in public interest
Always discretionary. Must state its terms in specificity. Court must make specific findings of
fact and separate conclusions of law. Immediately appealable.
Pretrial Adjudication - Voluntary Dismissal P wants to withdraw. Can make motion anytime.
Right to take voluntary dismissal by filing notice of dismissal but must do so before def. serves
answer or motion for sum. judg. If timely, filed without prejudice, but can only do once.
Pretrial Adjudication - Default When D does not respond to complaint in time - default is
notation by court clerk on docket sheet of case. Not automatic, pl. must move for default - cuts
off def.'s right to respond
