Civil Procedure—MBE Attack Sequences

Attack sequence

1. Federal question? Under the well-pleaded complaint rule, the federal issue must appear in P's own claim, not as a defense.
2. Diversity? Complete diversity (no P shares a state with any D) AND amount in controversy exceeds 75,000.
3. Determine citizenship Individual = domicile (presence + intent to remain). Corporation = state of incorporation and principal place of business (nerve center).
4. Amount in controversy One P may aggregate all claims against one D; measure in good faith.
5. No original basis? Consider supplemental See supplemental jurisdiction.

Key rules

• G/R: Federal courts have jurisdiction over civil actions arising under federal law, or over state-law claims with complete diversity + more than 75,000.
• Well-pleaded complaint rule: a federal defense does not create federal question jurisdiction.

Attack sequence

1. Anchor claim with SMJ? Need one claim already within federal jurisdiction.
2. Common nucleus of operative fact? Added claim must arise from the same transaction or occurrence.
3. Diversity-anchor limit In a diversity case, a plaintiff cannot use supplemental jurisdiction to defeat complete diversity.
4. Removal: could P have filed in federal court? Defendant may remove only if the case could originally have been brought federally.
5. Removal mechanics All defendants must join; notice within 30 days of service; diversity removal barred if any D is a citizen of the forum state.

Attack sequence

1. Traditional bases Domicile in the forum, consent/waiver, or voluntary physical presence when served.
2. Long-arm statute reach Does the state statute authorize jurisdiction over this defendant?
3. Minimum contacts Did D purposefully avail itself of the forum (cause harm, do business, own property there)?
4. Relatedness Does the claim arise from those contacts (specific) or are contacts so continuous and systematic that D is essentially at home (general)?
5. Fair play and substantial justice Would jurisdiction offend traditional notions of fairness?

Key rules

• PJ must be established separately for each defendant.
• Purposeful availment: D must reach out to the forum to enjoy its benefits and protections.

Attack sequence

1. Proper venue District where any D resides if all Ds reside in the same state, OR where a substantial part of the events occurred.
2. Fallback If neither applies, any district where a D is subject to PJ.
3. Transfer A court may transfer to any district where the case could have been brought, for convenience and the interest of justice.
4. Forum non conveniens Dismiss if the far-superior forum is abroad or otherwise outside the transfer system.
5. Erie: is the issue substantive or procedural? In diversity, apply state substantive law and federal procedural law.
6. Erie tie-breakers If a valid Federal Rule is on point, it governs; otherwise ask whether the state rule is outcome-determinative and balance the twin aims.

Attack sequence

1. Claim joinder A party may join any number of claims against an opposing party.
2. Counterclaims Compulsory if same transaction or occurrence (waived if not raised); permissive otherwise (needs its own SMJ).
3. Cross-claims Against a co-party; must arise from the same transaction or occurrence.
4. Compulsory party joinder Join a necessary absentee if feasible; if joinder is not feasible, decide whether to proceed or dismiss.
5. Impleader A defending party may bring in a nonparty who is or may be liable to it for indemnity or contribution.
6. Class action Numerosity, commonality, typicality, adequacy, plus the applicable category.

Attack sequence

1. Complaint sufficiency Short and plain statement of jurisdiction, a plausible claim (sufficient factual matter), and a demand for relief.
2. Amendment Once as a matter of course within 21 days; otherwise by leave, freely given; relation back if same conduct/transaction.
3. Rule 12(b) defenses Raise 2 through 5 (PJ, venue, process, service) in the first response or waive them.
4. Never-waived defenses 12(b)(1) lack of SMJ any time; 12(b)(7) failure to join before trial ends.
5. Rule 11 Filings certify a non-frivolous purpose after reasonable inquiry.
6. Summary judgment No genuine dispute of material fact and movant entitled to judgment as a matter of law.

Attack sequence

1. Claim preclusion elements Same claimant and defendant, a valid final judgment on the merits, and the same claim (same transaction or occurrence).
2. Effect Bars relitigation of the claim and every ground that could have been raised.
3. Issue preclusion elements Same issue, actually litigated and determined, essential to a valid final judgment.
4. Who is bound Only a party (or privy) is bound; a nonparty generally is not.
5. Who may use it Mutuality is relaxed: nonparties may sometimes assert issue preclusion offensively or defensively.