Bar Exam — Civil Procedure (MBE subject) flashcards
10 of 80 cards free to study here · 7 topics · the whole deck is built into Willys
Black-letter federal civil procedure: jurisdiction, venue, Erie, pleadings, joinder, class actions, discovery, preliminary injunctions, summary judgment, defaults and dismissals, jury trial, post-trial motions, preclusion, appeals and review standards. Not affiliated with or endorsed by NCBE.
Learn deck · part of Bar exam (MBE subjects) · written against: NCBE MBE subject matter outline, edition dated 11/16/20; Supreme Court decisions through the October 2024 Term. Updated 2026-10-10.
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P sues D in federal court for breach of a state-law contract, alleging that D will raise a federal statute as a defense. Is there federal-question jurisdiction?No — under the well-pleaded complaint rule, the federal issue must appear in the plaintiff's own claim, not in an anticipated defense or a reply to one. P's claim arises under state contract law, so it must rest on diversity if it is to stay in federal court.Jurisdiction › Federal Question and Diversity
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P1 (Texas) and P2 (Ohio) sue D1 (Florida) and D2 (Ohio) in federal court on state-law claims worth 200,000 dollars. Is there diversity jurisdiction?No — diversity requires complete diversity: no plaintiff may share citizenship with any defendant. P2 and D2 are both Ohio citizens, which destroys diversity. Citizenship is measured when the action is filed.Jurisdiction › Federal Question and Diversity
Watch out: class actions under CAFA and statutory interpleader need only minimal diversity. -
In a diversity case, which law governs the substantive rights at issue?State substantive law, including state statutes and decisions of the state's highest court; federal law governs procedure. There is no general federal common law for federal courts to apply in place of state law.Law Applied › Erie Doctrine
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A state requires in-hand service on the defendant; Federal Rule 4 allows leaving process at the defendant's home with a resident of suitable age and discretion. Which governs in a diversity case?The Federal Rule — a valid Federal Rule of Civil Procedure that directly covers the issue applies in diversity cases if it is within the Rules Enabling Act and the Constitution. In that situation, the outcome-determinative analysis is unnecessary.Law Applied › Erie Doctrine
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A complaint alleges only that competitors "conspired to fix prices," with no supporting facts. Will it survive a Rule 12(b)(6) motion?No — a complaint must allege enough facts to state a claim that is plausible on its face; legal conclusions and bare recitals of elements are not presumed true. Parallel conduct alone, without facts suggesting an actual agreement, does not plausibly show a conspiracy.Pretrial › Pleadings and Rule 12
Watch out: the plausibility standard applies to every civil complaint, not only antitrust claims. -
A plaintiff alleges fraud in general terms. What pleading standard applies?Rule 9(b) requires fraud or mistake to be stated with particularity — typically the who, what, when, where and how of the misrepresentation. Malice, intent, knowledge and other states of mind may still be alleged generally.Pretrial › Pleadings and Rule 12
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P sues for both damages and an injunction based on the same facts. Is there a jury, and in what order are issues tried?The Seventh Amendment preserves the right to a jury for legal claims (such as damages) but not equitable ones; when both are joined, common factual issues are tried to the jury first so the judge's equitable ruling cannot preempt it. Whether a claim is legal is judged by analogy to the common law of 1791 and the nature of the remedy.Jury Trial › Right to Jury
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When may a court grant judgment as a matter of law during a jury trial?After a party has been fully heard on an issue, if a reasonable jury would not have a legally sufficient evidentiary basis to find for that party on it. The motion may be made any time before the case is submitted to the jury and must specify the judgment sought and the law and facts supporting it.Motions › Judgment as a Matter of Law and New Trial
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What must be shown for claim preclusion (res judicata) to bar a second suit?The same claim, between the same parties or their privies, after a valid final judgment on the merits. Most courts define the same claim by the transaction test.Judgments › Claim and Issue Preclusion
Watch out: a court gives a judgment the preclusive effect the rendering court's law would give it. -
What is the federal final judgment rule, and how long does a party have to appeal?Generally, only a final decision that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment is appealable; the notice of appeal is due within 30 days after entry of judgment. In multi-claim or multi-party cases, a court may enter final judgment on fewer than all claims under Rule 54(b) if it expressly finds no just reason for delay.Appeals › Appealability
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Review status: Second-reader reviewed, with corrections applied.
Checked against:
- Checked against the Federal Rules of Civil Procedure and Title 28 of the U.S. Code (public law) and U.S. Supreme Court holdings (public domain); no treatise or outline text reproduced.
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