MBE WORKSHOP: CIVIL PROCEDURE PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW

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1 MBE WORKSHOP: CIVIL PROCEDURE PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW CHAPTER 1: CIVIL PROCEDURE Editor's Note 1: The below outline is taken from the National Conference of Bar Examiners' website. NOTE: Examinees are to assume the application of (1) the Federal Rules of Civil Procedure as currently in effect and (2) the sections of Title 28 to the U.S. Code pertaining to trial and appellate jurisdiction, venue, and transfer. Approximately two-thirds of the Civil Procedure questions on the MBE will be based on categories I, III, and V, and approximately one-third will be based on the remaining categories II, IV, VI, and VII. I. Jurisdiction and venue A. Federal subject matter jurisdiction (federal question, diversity, supplemental, and removal) B. Personal jurisdiction C. Service of process and notice D. Venue, forum non conveniens, and transfer II. Law applied by federal courts A. State law in federal court B. Federal common law III. Pretrial procedures A. Preliminary injunctions and temporary restraining orders B. Pleadings and amended and supplemental pleadings C. Rule 11 D. Joinder of parties and claims (including class actions) E. Discovery (including e-discovery), disclosure, and sanctions F. Adjudication without a trial G. Pretrial conference and order IV. Jury trials A. Right to jury trial B. Selection and composition of juries C. Requests for and objections to jury instructions V. Motions A. Pretrial motions, including motions addressed to face of pleadings, motions to dismiss, and summary judgment motions B. Motions for judgments as a matter of law (directed verdicts and judgments notwithstanding the verdict) C. Posttrial motions, including motions for relief from judgment and for new trial VI. Verdicts and judgments A. Defaults and involuntary dismissals B. Jury verdicts types and challenges C. Judicial findings and conclusions D. Effect; claim and issue preclusion VII. Appealability and review A. Availability of interlocutory review B. Final judgment rule C. Scope of review for judge and jury

2 TOP FIVE THINGS TO KNOW FOR CIVIL PROCEDURE 1. Think about how to make the case go away. 2. If the fact pattern includes dates, make a timeline. Many rules revolve around the number of days allowed to do something. 3. Be open-minded about jurisdiction. 4. Carefully note the cause of action. 5. Recognize that this is a new subject on the MBE; you are just as prepared as everyone else! Themis Bar Review, LLC MBE Workshop: Civil Procedure

3 CHAPTER 2: CIVIL PROCEDURE - PRACTICE QUESTIONS Tip #1: Think about how to make the case go away. A bank properly filed an action in federal district court to collect on an overdue promissory note. The defendant, who was the alleged maker of the note, asserted in his answer that the signature on the note was a forgery. The answer was prepared, submitted, and signed by his attorney. The bank timely filed a summary judgment motion. As part of the motion, the bank, in addition to attaching the note, attached an affidavit by a bank officer in which the officer swore that she had witnessed the signing of the note and that the signer had been the defendant. The defendant replied to the motion by noting the statement in his answer that he had not signed the note. Determining that there were other issues in dispute, the court refused to grant a partial summary judgment with respect to the issue of forgery. Was the court's denial of a partial summary judgment with respect to the issue of forgery correct? A. Yes, because the affidavit by the bank officer was self-serving. B. Yes, because a partial summary judgment is not permitted under the federal rules. C. No, because the bank eliminated the possibility that the signature on the note was a forgery. D. No, because the defendant failed to carry his burden to show that there was a genuine dispute as to the authenticity of the signature. Answer choice D is correct. With respect to a summary judgment motion, the movant must show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Here, with regard to the issue of forgery, the bank presented an affidavit that the defendant was the person who signed the note. This evidence, if uncontradicted, is sufficient to entitle the bank to judgment as a matter of law that the signature on the note is not a forgery. Consequently, the burden shifts to the defendant to present evidence that would dispute this fact. A party opposing a motion for summary judgment may not rely merely on allegations or denials in her own pleading, but she must set out specific facts showing a genuine dispute for trial. In this case, while the defendant did point out to the court a statement contained in his answer, merely alluding to a statement made in a pleading does not constitute evidence. Because the defendant did not offer evidence that would dispute the bank officer's affidavit, the bank was entitled to a partial summary judgment with respect to the issue of forgery. Answer choice A is incorrect because, although the bank officer, as an agent of the bank, was likely biased in favor of the bank and thus the statement might be characterized as self- serving, the fact that evidence is self-serving does not prevent its introduction into evidence. Evidence presented by a party is typically self-serving, in that it supports the party's position. Answer choice B is incorrect because a partial summary judgment is permitted under the federal rules. Answer choice C is incorrect because the bank as movant is not, at least initially, required to eliminate the possibility that the signature on the note was a forgery. Instead, the bank meets its burden of production by making a prima facie showing that the signature on the note is genuine. If the defendant then introduces evidence that the note is a forgery, the bank would have to present evidence that there is no genuine dispute as to the issue of forgery. In this case, however, the defendant failed to present such evidence. MBE Workshop: Civil Procedure 2016 Themis Bar Review, LLC 3

4 Tip #2: If the fact pattern includes dates, make a timeline. Many rules revolve around the number of days allowed to do something. Family members of a deceased individual properly filed an action for money damages in federal court against a funeral home for negligent infliction of emotional distress based on the alleged mishandling of the remains of the deceased. The funeral home timely and properly served an answer to the complaint. Thirty days later, including eight weekend days, the family members served a demand for a jury trial on the funeral home. The demand was served on a holiday. On the following day, a nonholiday weekday, the family members filed the jury trial demand with the court. Was the family member's demand for a jury trial timely? A. No, because the demand for a jury trial was not served on the funeral home within 14 days of service of the answer. B. No, because the demand for a jury trial was not filed with the court within 21 days of service of the answer. C. Yes, because the last day for making the demand was a holiday. D. Yes, because weekend days are not counted in determining whether the demand was timely Themis Bar Review, LLC MBE Workshop: Civil Procedure

5 CHAPTER 3: CIVIL PROCEDURE - PRACTICE QUESTIONS Tip #2 Answer Explanation Answer choice A is correct. A demand for a jury trial must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury. Here, the complaint sought damages, which is an action at law for which a jury trial may be had. However, the demand was not made within 14 days of service of the funeral home s answer, which is the only responsive pleading the funeral home may make that is directed to the plaintiff s complaint. Therefore, the demand for a jury trial was not timely. Answer choice B is incorrect. While a defendant has 21 days to respond to a complaint, a demand for a jury trial must be served on the other parties within 14 days after service of the last pleading directed to the issue for which the jury trial is sought. Answer choice C is incorrect. In computing whether a party has complied with the rules for undertaking an action within the specified time period, when the last day of the period would otherwise fall on a holiday, the action may be undertaken on the next non-holiday weekday. However, in this case, because the time period is 14, not 21 days, the time period for making a jury trial demand expired prior to the family members service of the jury trial demand. Answer choice D is incorrect. Weekend days are counted in determining whether a party has taken action, such as making a demand for a jury trial, within the permissible time period. MBE Workshop: Civil Procedure 2016 Themis Bar Review, LLC 5

6 Tip #3: Be open-minded about jurisdiction. A plaintiff sued a defendant in federal district court following a car accident between the parties that occurred in the state where the federal district court is located. The plaintiff asserted a negligence claim under state law, and in good faith alleged damages of $100,000. At the time of the car accident, both parties were domiciled in the forum state. Following the accident, but before filing the complaint, the plaintiff accepted a full-time job in another state and moved to that state with the intent of living there permanently. After a bench trial, the judge ruled for the plaintiff and awarded $70,000 in damages. The defendant appealed the decision, asserting for the first time that the trial court lacked subject-matter jurisdiction. Is the defendant likely to succeed in his appeal? A. No, because the defendant waived the issue by failing to raise it in the lower court. B. No, because the requirements for diversity jurisdiction were satisfied. C. Yes, because the plaintiff recovered less than $75,000 in damages. D. Yes, because the parties were not citizens of different states when the claim arose Themis Bar Review, LLC MBE Workshop: Civil Procedure

7 CHAPTER 4: CIVIL PROCEDURE - PRACTICE QUESTIONS Tip #3 Answer Explanation Answer choice B is correct. U.S. district courts have diversity jurisdiction when both (i) no plaintiff is a citizen of the same state as any defendant and (ii) the amount in controversy in the action exceeds $75,000. To be a citizen of a state, a person must be a citizen of the United States and a domiciliary of the state. Domicile is determined at the time the action is commenced. In this case, the requirements for diversity jurisdiction were satisfied because the parties were citizens of different states at the time the action was commenced, and the amount in controversy was more than $75,000. Answer choice A is incorrect because an objection to subject-matter jurisdiction can be raised at any stage of a proceeding, including on appeal. Answer choice C is incorrect because the amount in controversy is determined at the time the action is commenced in federal court. If the plaintiff eventually recovers an amount that is less than the statutory jurisdictional amount, that fact will not render the verdict subject to challenge on appeal for lack of jurisdiction. In this case, the plaintiff asserted over $75,000 in damages, and thus satisfied the amount-in-controversy requirement. Answer choice D is incorrect because diversity must exist at the time of filing of the lawsuit, not when the claim arose. A party may establish or defeat diversity by changing state citizenship after the accrual of a cause of action but before the commencement of a lawsuit. In this case, although the parties were citizens of the same state when the accident occurred, the plaintiff was a citizen of a different state than the defendant when the lawsuit was commenced, and thus the requirements for diversity jurisdiction were satisfied. MBE Workshop: Civil Procedure 2016 Themis Bar Review, LLC 7

8 Tip #4: Carefully note the cause of action. An employer properly filed a complaint in federal district court seeking an injunction to enforce a covenant not to compete against a former employee. The former employee properly filed an answer that contained a counterclaim for damages stemming from alleged unpaid wages. The employer timely filed a demand for a jury trial with regard to the counterclaim. The former employee timely filed a motion challenging this demand. How should the court rule on the former employee's motion? A. Deny the motion, because the employer is seeking an injunction. B. Deny the motion, because the former employee is seeking damages. C. Grant the motion, because the employer is not seeking damages. D. Grant the motion, because only a defendant may demand a jury trial. Answer choice B is correct. Any party may make a jury trial demand with regard to an action at law, which includes any claim for damages. The right to trial by jury is evaluated for each claim. Because the former employee is seeking damages in the counterclaim, the employer is entitled to a jury trial on this issue. Consequently, the court should deny the former employee's motion that challenged the employer's demand for a jury trial on the counterclaim. Answer choice A is incorrect. While the employer is seeking an injunction (equitable relief) and thus the parties are not entitled to a jury trial with respect to the employer's complaint, either party may assert its right to a jury trial with respect to the former employee's counterclaim that seeks relief in the form of damages. Answer choice C is incorrect. Even though the employer is not seeking damages, the employer may assert its right to a jury trial with respect to the former employee's counterclaim that seeks relief in the form of damages. Answer choice D is incorrect because either party may make a jury trial demand Themis Bar Review, LLC MBE Workshop: Civil Procedure