Civil Procedure Flashcards
7 cards from real Multistate Bar Exam practice questions. Tap to flip, then mark Knew It or Still Learning — missed cards come back until you master them.
Read the first 7 Civil Procedure flashcards as text
A plaintiff files a complaint alleging breach of contract. The defendant's answer asserts that the plaintiff's own breach excuses the defendant's performance. This assertion is a:
Answer: Affirmative defense
An affirmative defense is new matter asserted by the defendant that, if proven, defeats the plaintiff's claim even if all of the plaintiff's allegations are true.
Under the Erie doctrine, a federal court sitting in diversity must apply state law on which type of issue?
Answer: Substantive issues such as elements of a claim, defenses, and statutes of limitations
Under Erie Railroad Co. v. Tompkins, federal courts in diversity cases apply state substantive law, including elements of claims, defenses, and statutes of limitations, while federal procedural law governs the manner of litigation.
A plaintiff sues in federal court and seeks to add a new defendant six months after the statute of limitations expired. Under FRCP 15(c), the amended complaint adding the new defendant 'relates back' to the original filing date if:
Answer: The new defendant received notice of the action within 90 days of filing, knew or should have known it would have been named, and the claim arises from the same transaction or occurrence
Under FRCP 15(c)(1)(C), relation back requires that the new party received notice within the Rule 4(m) period, knew or should have known it would have been named but for a mistake, and the claim arises from the same transaction.
A party seeks summary judgment under FRCP 56. The moving party does not bear the burden of proof at trial. What must the moving party show to obtain summary judgment?
Answer: Affirmative evidence negating an essential element of the nonmoving party's case, or point to an absence of evidence to support the nonmoving party's case
When the moving party does not bear the burden of proof at trial, it may obtain summary judgment by either producing evidence negating an element of the opponent's case or showing the absence of evidence supporting that element.
During trial, the plaintiff calls an expert witness who testifies about the cause of the plaintiff's injuries. The defendant challenges the expert's methodology. Under Daubert, the trial court acts as:
Answer: A gatekeeper who must assess whether the expert's testimony is based on sufficient facts, reliable methodology, and reliably applied to the facts
Under Daubert v. Merrell Dow Pharmaceuticals, the trial judge serves as a gatekeeper, examining whether expert testimony rests on sufficient facts, a reliable methodology, and reliable application of that methodology to the facts.
A plaintiff files suit in State X federal court. The defendant is incorporated in State Y but has its principal place of business in State X. The plaintiff is a citizen of State X. Is diversity jurisdiction available?
Answer: No, because the defendant is deemed a citizen of both State Y and State X, destroying complete diversity
Under 28 U.S.C. § 1332(c)(1), a corporation is deemed a citizen of every state where it is incorporated and the state where it has its principal place of business; since the defendant is a citizen of State X, complete diversity with the plaintiff (also State X) is destroyed.
A defendant wants to implead a third party who may be liable to the defendant if the defendant is found liable to the plaintiff. Under FRCP 14, the defendant may implead a third party:
Answer: As of right within 14 days of serving the answer; thereafter, with leave of court
Under FRCP 14(a)(1), a defending party may serve a third-party complaint as of right within 14 days of serving its original answer; after that, leave of court is required.