NextGen Bar Exam Civil Procedure Flashcards

24 sample cards from the Civil Procedure deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What does Rule 8 require for a defendant's answer, and what are the consequences of failing to deny?

   The answer must admit or deny each allegation and state affirmative defenses. An allegation—other than one about the amount of damages—is deemed admitted if not denied when a responsive pleading is required.

2. When may a party amend a pleading once as a matter of course under Rule 15(a)?

   A party may amend once as a matter of course within 21 days after serving it, or—if the pleading requires a response—21 days after service of a responsive pleading or a Rule 12(b),(e), or (f) motion, whichever is earlier. Otherwise, amendment requires the opposing party's consent or leave of court (freely given when justice requires).

3. Under Rule 15(c), when does an amendment changing the party (defendant) relate back to the date of the original pleading?

   It relates back if the claim arose out of the same conduct/transaction AND, within the Rule 4(m) service period, the new party (1) received notice of the action so it will not be prejudiced and (2) knew or should have known the action would have been brought against it but for a mistake concerning the proper party's identity.

4. When does an amendment that adds a new claim relate back to the original pleading?

   Under Rule 15(c)(1)(B), an amended claim relates back when it arises out of the same conduct, transaction, or occurrence set out (or attempted to be set out) in the original pleading. Relation back lets the claim avoid a statute-of-limitations bar.

5. List the seven defenses that may be raised by a Rule 12(b) motion.

   (1) Lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a required party under Rule 19.

6. Which Rule 12 defenses are waived if not raised in the first response, and which are never waived?

   The 'disfavored' defenses—personal jurisdiction, improper venue, insufficient process, and insufficient service—are waived if not raised in the first Rule 12 motion or responsive pleading. Failure to state a claim and failure to join a Rule 19 party may be raised through trial. Lack of subject matter jurisdiction can be raised at any time, even on appeal.

7. What is the deadline to serve a responsive pleading after being served, and what is the effect of filing a Rule 12 motion?

   A defendant must serve an answer within 21 days after service (60/90 days if waiver of service was used). Filing a Rule 12 motion suspends the time to answer; if the motion is denied, the responsive pleading is due within 14 days after notice of the court's action.

8. Distinguish permissive joinder of claims (Rule 18) from compulsory and permissive counterclaims (Rule 13).

   Rule 18: a party asserting a claim may join as many claims as it has against an opposing party (no transactional relationship needed). Rule 13(a) compulsory counterclaim: arises from the same transaction/occurrence as the opposing party's claim and is waived if not asserted. Rule 13(b) permissive counterclaim: any claim not arising from the same transaction—may be asserted but is not required.

9. What is the standard for permissive joinder of parties under Rule 20?

   Plaintiffs or defendants may be joined if (1) the claims arise out of the same transaction, occurrence, or series of transactions/occurrences, AND (2) there is a common question of law or fact to all the parties.

10. What is a 'required (necessary) party' under Rule 19(a), and when does its non-joinder make a party 'indispensable'?

    A party is required if, in its absence, complete relief cannot be granted among existing parties, or the absentee's interest would be impaired or would expose a party to multiple/inconsistent obligations. If such a party cannot be joined (e.g., joinder destroys diversity), the court weighs the Rule 19(b) factors to decide whether to proceed or dismiss because the party is indispensable.

11. What are the four prerequisites of Rule 23(a) that every class action must satisfy?

    (1) Numerosity—the class is so numerous that joinder is impracticable; (2) Commonality—common questions of law or fact; (3) Typicality—the representatives' claims/defenses are typical of the class; and (4) Adequacy—the representatives will fairly and adequately protect class interests.

12. Describe the three types of class actions under Rule 23(b).

    23(b)(1): separate actions would risk inconsistent adjudications or impair absent members' interests. 23(b)(2): the party opposing the class acted on grounds applying generally to the class, making injunctive/declaratory relief appropriate. 23(b)(3): common questions predominate over individual ones and a class action is superior—this type requires notice and opt-out rights for members.

13. What does Rule 26(b)(1) define as the scope of discovery, and what is proportionality?

    Parties may obtain discovery of any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case. Proportionality considers the importance of the issues, the amount in controversy, the parties' access to information, resources, the importance of discovery in resolving issues, and whether the burden/expense outweighs the likely benefit. Information need not be admissible to be discoverable.

14. What is the work-product doctrine and how does it differ from attorney-client privilege?

    Work product (Rule 26(b)(3); Hickman v. Taylor) protects documents/tangible things prepared in anticipation of litigation; it can be overcome by showing substantial need and inability to obtain the equivalent without undue hardship, but 'opinion' work product (an attorney's mental impressions/legal theories) gets near-absolute protection. Attorney-client privilege protects confidential communications for legal advice and is absolute unless waived.

15. List the principal discovery devices available under the Federal Rules.

    Depositions (Rule 30/31), interrogatories (Rule 33, limited to 25 and only to parties), requests for production of documents/ESI (Rule 34), physical/mental examinations (Rule 35, requires court order and good cause), and requests for admission (Rule 36). Required initial disclosures are governed by Rule 26(a).

16. What is the standard for granting summary judgment under Rule 56?

    The court grants summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A fact is 'material' if it could affect the outcome; a dispute is 'genuine' if a reasonable jury could find for the nonmovant. The court views evidence in the light most favorable to the nonmoving party.

17. How does the summary judgment burden shift between the movant and nonmovant (Celotex)?

    The movant bears the initial burden of showing the absence of a genuine dispute—either with affirmative evidence or, under Celotex, by pointing out that the nonmovant lacks evidence to support an essential element on which it bears the burden. The nonmovant must then come forward with specific facts (not mere allegations) showing a genuine dispute for trial.

18. What is the constitutional source of the right to a jury trial in federal civil cases, and what is the test for when it applies?

    The Seventh Amendment preserves the right to a jury trial in 'suits at common law' (legal claims, not equitable). Courts apply a historical test (whether the claim is analogous to one tried at law in 1791) and look at the nature of the remedy sought (legal damages vs. equitable relief). When legal and equitable claims are joined, the legal issues are tried to a jury first.

19. Distinguish judgment as a matter of law (JMOL) under Rule 50(a) from renewed JMOL (RJMOL) under Rule 50(b), including timing.

    Rule 50(a) (formerly 'directed verdict'): made after the opposing party has been fully heard but before the case is submitted to the jury—granted if no reasonable jury could find for that party. Rule 50(b) (formerly 'JNOV'): a renewal after the verdict, which must have been preceded by a Rule 50(a) motion; it must be filed within 28 days after entry of judgment.

20. State the elements of claim preclusion (res judicata).

    A final judgment on the merits bars relitigation when (1) there was a valid final judgment on the merits; (2) the same parties (or those in privity) are involved; and (3) the same claim or cause of action is asserted (under the majority transactional test, claims arising from the same transaction or occurrence).

21. State the elements of issue preclusion (collateral estoppel).

    An issue may not be relitigated if (1) the same issue was actually litigated and determined in the prior action; (2) the determination was essential to the prior judgment; and (3) the prior judgment was valid and final. The party to be bound must have had a full and fair opportunity to litigate (due process limits binding nonparties).

22. Distinguish mutual, defensive nonmutual, and offensive nonmutual collateral estoppel.

    Mutual: only parties to the first suit may use estoppel. Defensive nonmutual: a new defendant uses a prior loss to prevent a plaintiff from relitigating an issue the plaintiff already lost—generally permitted. Offensive nonmutual: a new plaintiff uses a prior finding against a defendant who lost before—permitted at the court's discretion (Parklane Hosiery), avoiding unfairness and wait-and-see plaintiffs.

23. What is the final judgment rule and what statute embodies it?

    Under 28 U.S.C. § 1291, federal courts of appeals have jurisdiction only over 'final decisions'—those that end the litigation on the merits, leaving nothing for the court to do but execute the judgment. Generally a party may appeal only after a final judgment, not from interlocutory orders.

24. Identify the principal exceptions allowing interlocutory (pre-final-judgment) appeal.

    (1) 28 U.S.C. § 1292(a)—appeals as of right from orders granting/denying injunctions; (2) § 1292(b)—discretionary certified appeals of controlling questions of law with substantial ground for difference of opinion; (3) Rule 54(b)—final judgment as to fewer than all claims/parties with an express determination of no just reason for delay; (4) the collateral order doctrine (Cohen); and (5) writs of mandamus.

What this deck covers

Civil Procedure flashcards FAQ