Multistate Bar Examination (MBE) Civil Procedure Syllabus

Where is venue proper under 28 U.S.C. § 1391?

Venue is proper in (1) any district where any defendant resides, if all defendants reside in the same state; or (2) any district where a substantial part of the events/omissions giving rise to the claim occurred (or where the property is situated). A fallback applies if neither is available.

What is the difference between transfer under § 1404(a) and § 1406(a)?

§ 1404(a): transfer from a proper venue to another proper venue for convenience—the transferor's choice-of-law rules follow the case. § 1406(a): transfer/dismissal when venue was improper—the transferee's law applies.

What is the doctrine of forum non conveniens?

A court may dismiss (not transfer) a case when the far more appropriate forum is in a foreign country or a state court, beyond the reach of federal transfer statutes, based on public and private convenience factors.

What must a complaint contain under Rule 8(a), and what is the Twombly/Iqbal plausibility standard?

A short and plain statement of (1) grounds for jurisdiction, (2) the claim showing entitlement to relief, and (3) a demand for relief. The complaint must state a claim that is 'plausible on its face'—factual content allowing a reasonable inference of liability, beyond mere labels and conclusions.

What is the heightened pleading standard of Rule 9(b)?

For fraud or mistake, a party must state the circumstances constituting the fraud or mistake with particularity (the who, what, when, where, and how). Malice, intent, and knowledge may be alleged generally.

When must a defendant respond, and what defenses are waived if omitted from the first Rule 12 response?

A defendant must answer within 21 days of service (60/90 days if waiver of service is used). The four 'disfavored' defenses—lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process—are WAIVED if not raised in the first Rule 12 motion or answer.

Which Rule 12 defenses can be raised at any time?

Lack of subject-matter jurisdiction can be raised at any time, even on appeal. Failure to state a claim and failure to join a required party may be raised through trial. Only the four 'waivable' defenses are lost if not consolidated in the first response.

What is the standard for amending pleadings under Rule 15, and what is 'relation back'?

A party may amend once as a matter of course within 21 days (or 21 days after a responsive pleading/Rule 12 motion); otherwise by leave of court 'freely given when justice so requires.' Amendments relate back to the original filing date if they arise from the same conduct/transaction (and, for new defendants, if the new party had notice and knew it would have been named but for a mistake).

What is the difference between permissive joinder (Rule 20) and compulsory joinder (Rule 19)?

Rule 20 (permissive): parties MAY join if claims arise from the same transaction/occurrence AND share a common question of law or fact. Rule 19 (required): a party MUST be joined if feasible when complete relief is impossible without them or their absence impairs their interest/risks multiple liability.

What is the difference between a compulsory and a permissive counterclaim?

Compulsory (Rule 13(a)): arises from the same transaction/occurrence as the opposing party's claim—must be asserted now or it is waived/lost. Permissive (Rule 13(b)): unrelated claim—may be asserted but is not required, and needs its own jurisdictional basis.

What is impleader under Rule 14?

A defending party (third-party plaintiff) brings in a new party (third-party defendant) who is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant—i.e., for indemnification or contribution (derivative liability).

What are the four prerequisites for a class action under Rule 23(a)?

Numerosity (class so large joinder is impracticable), Commonality (common questions of law/fact), Typicality (representatives' claims are typical of the class), and Adequacy (representatives fairly and adequately protect the class). Mnemonic: CANT / Numerosity-Commonality-Typicality-Adequacy.

What are the three types of class actions under Rule 23(b)?

23(b)(1): risk of inconsistent results or impairment (limited fund). 23(b)(2): defendant acted on grounds applicable to the whole class, seeking injunctive/declaratory relief. 23(b)(3): common questions predominate and a class action is superior (this type requires notice and an opt-out right).

In a (b)(3) class action, what notice and opt-out rights exist, and are they required for (b)(1)/(b)(2)?

Only (b)(3) damages classes require individual notice (the best practicable) and the right to opt out. (b)(1) and (b)(2) classes are mandatory—no notice or opt-out right is guaranteed.

What are the special diversity rules for class actions and CAFA?

In a Rule 23 diversity class action, only the named representatives' citizenship is considered for complete diversity. Under CAFA, federal jurisdiction exists if there are 100+ class members, minimal diversity (any class member diverse from any defendant), and the aggregate amount in controversy exceeds $5 million.

What is the scope of discovery under Rule 26(b)(1)?

Parties may obtain discovery of any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case. Information need not be admissible to be discoverable; it need only be relevant and proportional.

What is the work-product (trial-preparation) doctrine and when can it be overcome?

Materials prepared in anticipation of litigation are protected. Ordinary (fact) work product is discoverable only on a showing of substantial need and inability to obtain the equivalent without undue hardship. Opinion work product (attorney's mental impressions, opinions, legal theories) receives near-absolute protection.

What are the required initial disclosures under Rule 26(a)(1)?

Without a discovery request, parties must disclose: (1) names of individuals likely to have discoverable information they may use; (2) copies/descriptions of documents they may use; (3) a computation of damages; and (4) any applicable insurance agreements.

Compare the principal discovery devices and any numerical limits.

Depositions (oral/written): limited to 10 per side, max 1 day of 7 hours each—may be used on parties and non-parties (non-parties require a subpoena). Interrogatories: written questions, limited to 25 including subparts, only to parties. Requests for production, requests for admission, and physical/mental exams (court order + good cause, only for parties whose condition is in controversy).

What is the difference between depositions and interrogatories in terms of who can be questioned?

Depositions may be taken of any person (parties via notice; non-parties via subpoena). Interrogatories may be served ONLY on parties.

What is required to compel a physical or mental examination under Rule 35?

Unlike other discovery, a Rule 35 exam requires a court order on a showing of good cause, and is available only when a party's (or person in a party's custody/control) physical or mental condition is genuinely 'in controversy.'

What is the duty to supplement and the rule on a 'meet and confer' before discovery motions?

Parties must supplement prior disclosures/responses if they learn the information is incomplete or incorrect. Before moving to compel (Rule 37(a)) or for a protective order (Rule 26(c)), the movant must certify a good-faith attempt to confer with the opposing party.

What is the two-step sanction process under Rule 37 for failure to comply with discovery?

Generally, a party must first obtain an order compelling discovery (Rule 37(a)); violation of that order triggers sanctions (Rule 37(b)) including establishing facts, barring evidence/claims, striking pleadings, dismissal, default, or contempt. Some failures (total failure to respond, failure to preserve ESI) allow immediate sanctions.

What are the standards for granting a motion to dismiss (12(b)(6)) versus summary judgment (Rule 56)?

12(b)(6): tests legal sufficiency of the complaint on its face, accepting well-pleaded facts as true (no outside evidence). Summary judgment: granted when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law—the court considers evidence (affidavits, depositions, etc.).

What is the difference between voluntary and involuntary dismissal under Rule 41?

Voluntary (41(a)): plaintiff may dismiss once without court order before the answer or summary-judgment motion—normally without prejudice (a second voluntary dismissal of the same claim is with prejudice). Involuntary (41(b)): dismissal for plaintiff's failure to prosecute or comply with rules—operates as an adjudication on the merits (with prejudice) unless stated otherwise.

When is the right to a jury trial under the Seventh Amendment available, and how is it demanded?

The right attaches to legal claims (damages), not equitable claims (injunction). In mixed cases, legal issues are tried to the jury first. A jury demand must be made in writing within 14 days after service of the last pleading on the triable issue, or the right is waived.

Compare judgment as a matter of law (JMOL / Rule 50(a)) and renewed JMOL (Rule 50(b)).

JMOL (50(a)): may be made after the opposing party has been fully heard but before the case goes to the jury; granted if no reasonable jury could find for that party. Renewed JMOL (50(b)): made within 28 days after entry of judgment, but ONLY if a Rule 50(a) motion was first made before the case went to the jury (preservation requirement).

What is the standard and deadline for a new trial motion (Rule 59)?

A motion for a new trial must be filed within 28 days of entry of judgment. Grounds include errors at trial, verdict against the weight of the evidence, excessive/inadequate damages (allowing remittitur or additur—though additur is unconstitutional in federal court), juror misconduct, or newly discovered evidence.

What is the 'final judgment rule' for appellate review, and what is the deadline to appeal?

Under 28 U.S.C. § 1291, generally only final judgments (those ending litigation on the merits) may be appealed. A notice of appeal must usually be filed within 30 days of entry of judgment (60 days if the U.S. is a party).

What are the main exceptions to the final judgment rule?

Interlocutory appeals of certain injunctions (§ 1292(a)); discretionary appeals certified by the trial court of controlling questions of law (§ 1292(b)); Rule 54(b) certification of final judgment on some but not all claims/parties; the collateral order doctrine; and writs of mandamus.

What are the standards of review on appeal for questions of law, fact, and discretion?

Questions of law: reviewed de novo (no deference). Findings of fact (judge): reviewed for 'clear error.' Jury fact findings: reviewed only for substantial evidence. Discretionary rulings (e.g., evidentiary, discovery): reviewed for 'abuse of discretion.'

What are the elements of claim preclusion (res judicata)?

(1) A valid, final judgment on the merits; (2) the same claimant against the same defendant (same parties or privies); and (3) the same claim/cause of action (same transaction or occurrence). It bars relitigating claims that were or could have been raised in the first suit.

What kinds of dismissals count as 'on the merits' for claim preclusion?

Judgments after trial, summary judgment, and dismissals for failure to state a claim count as on the merits. Dismissals for lack of jurisdiction, improper venue, or failure to join a party are NOT on the merits and do not bar a later suit.

What are the elements of issue preclusion (collateral estoppel)?

(1) The issue was actually litigated and determined in the first action; (2) the determination was essential to the judgment; (3) there was a valid, final judgment; and (4) the party against whom it is asserted had a full and fair opportunity to litigate the issue.

What is the difference between defensive and offensive non-mutual issue preclusion?

Defensive: a new defendant uses a prior judgment to prevent a plaintiff from relitigating an issue the plaintiff lost before (generally allowed). Offensive: a new plaintiff uses a prior judgment to establish an issue the defendant lost before (allowed at the court's discretion, considering fairness and whether the defendant had incentive to litigate).

What is the Erie doctrine's core rule?

In diversity cases, federal courts apply federal procedural law but state substantive law (Erie R.R. v. Tompkins). There is no general federal common law; the court applies the substantive law (including conflict-of-laws rules) of the state in which it sits.

Under Erie, how does a court decide whether a law is 'substantive' or 'procedural' when no federal rule is on point?

Apply the outcome-determinative test (would applying federal law change the outcome and encourage forum shopping?) balanced against the twin aims of Erie, and Byrd's balancing of state vs. federal interests. Statutes of limitations, choice-of-law rules, and elements of claims are substantive.

Under the Hanna analysis, what happens when a valid Federal Rule of Civil Procedure directly conflicts with state law?

If a Federal Rule (or federal statute) is on point and valid under the Rules Enabling Act / Constitution (truly regulates procedure and does not abridge a substantive right), the federal court applies the Federal Rule even if it conflicts with state law—the Erie outcome-determinative analysis does not apply.