MBE Tip of the Day: Civil Procedure

Answer to the Civil Procedure MBE Question

Subject: Civil Procedure

Legal Issue: Subject matter jurisdiction and when affirmative defenses must be raised.

Legal Rule and Analysis:

A motion asserting a lack of subject matter jurisdiction can be raised at any time throughout the judicial process. There are four categories of federal subject matter jurisdiction:

1. Federal question – the claim must arise under federal law or state law that raises a substantial federal question;
2. Diversity – there must be complete diversity (no plaintiff can be from the same state as any defendant) and the amount in controversy must exceed $75,000
3. Supplemental – the tacking on of a state claim in federal court if the state claims arise from a common nucleus of operative fact with the federal claims; and
4. Statutory – certain statutes designate specific federal courts as the court of original jurisdiction.

In contrast, an affirmative defense of lack of personal jurisdiction or insufficient service of process must be raised in the initial answer or first responsive pleading.

In this case, a State A man filed a lawsuit against a State B woman in federal court located in State A. This is a negligence action, which is not an issue of federal law. Supplemental jurisdiction is not an option since there are not multiple claims, and there are no applicable statutes granting original jurisdiction to a federal court. Thus, diversity jurisdiction would be the only option for subject matter jurisdiction. There is complete diversity (as the facts state that the man was a resident of State A and the woman is a resident of State B, but the facts are silent as to the amount in controversy. The question asks you to assume the motion to dismiss is granted and to determine the most likely reason as to why. If the amount in controversy is not greater than $75,000, then the federal court does not have subject matter jurisdiction, and dismissal would be proper. (B) indicates that the amount in controversy was $75,000. This is not sufficient, as the amount must be greater than $75,000. This would cause the man’s suit to be dismissed for lack of subject matter jurisdiction.

Conclusion: Dismissal of this case would be proper if the amount in controversy is merely $75,000.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.  The answer choice (B) is therefore correct. (A) is incorrect because the affirmative defense of insufficient service of process must be raised in the initial answer or first responsive pleading.  We are told that the woman timely filed an answer denying all claims against her, and then filed her motion to dismiss.  By filing her answer without challenging service, she has waived her right to do so and therefore consented to service. (Note that service was improper here as she was not served personally, an agent was not served, and a person of suitable age and discretion was not served at her dwelling–it was her parents’ dwelling). (C) is incorrect because, similar to insufficient service of process, challenges to personal jurisdiction must be raised in the initial response or first responsive pleading.  While it is arguable whether the woman has sufficient minimum contacts with State A to constitute personal jurisdiction, she waived her right to challenge this issue when she filed her answer without raising this defense.  (D) is incorrect because it also alludes to lack of personal jurisdiction. However, personal jurisdiction has been waived by the woman’s failure to bring it up in her first response.

MBE Tip: In judicial proceedings, the timing of your actions is very important.  Certain actions or motions need to be raised at certain times, or one’s ability to do so will be waived.  When you are attempting to learn the mechanics of these proceedings, it may help you to create a timeline of the judicial process to study from.  Begin with the time that the complaint is filed, end at the conclusion of all appeal options, and fill in when all of the other actions and events can/must occur.  In many questions, like the one above, a timing issue will be outcome determinative.  Thus, a timeline can help you memorize these important rules!