3 Pleadings Flashcards
On January 15, the plaintiff, a citizen of one state, sued the defendant, a citizen of another state, in the federal district court in the defendant’s home state. The plaintiff’s complaint credibly alleges that (1) the defendant breached a contract with the plaintiff that resulted in $150,000 in damages, and (2) the court has diversity jurisdiction. On April 1, the plaintiff served process on the defendant by sending the summons and complaint to the defendant’s residence via Overnight Express Mail, a form of service authorized by the law of the forum state. The defendant moves to dismiss the complaint based on insufficient service of process.
Should the court grant this motion?
A. Yes, because the Federal Rules authorize service only on a defendant personally, on a person of suitable age and discretion at defendant’s usual abode, or on an agent authorized by a defendant or by law to receive service.
B. Yes, because the service of process was not timely.
C. No, because under the Erie doctrine, the federal court must apply state law.
D. No, because the Federal Rules allow service that follows state law governing courts in the state where the federal district court is located.
Subject Outline: Mbe Civil Procedure
Chapter: Pleadings
Section: Service Of Process
Correct Answer: D. No, because the Federal Rules allow service that follows state law governing courts in the state where the federal district court is located.
Learner Selected Answer: B. Yes, because the service of process was not timely.
A defendant must receive notice of a lawsuit through service of process—i.e., delivery of the summons and complaint. Under FRCP 4, a plaintiff can properly serve a defendant who is an individual located in the United States by:
- following the rules of the state where the court sits (i.e., the forum state) or where service is made
- having process delivered to the defendant personally (or to an agent authorized to receive process) or
- having process delivered to the defendant’s dwelling and left with a resident of suitable age and discretion (Choice A).
Here, the service rules of the forum state authorize service of process by sending the summons and complaint to the defendant’s residence via overnight express mail. Since FRCP 4 allows service that follows state law governing courts in the state where the federal district court is located, the defendant was properly served with process. Therefore, the defendant’s motion to dismiss the complaint based on insufficient service of process should be denied.
(Choice B) A defendant in the U.S. must be served with process within 90 days after the plaintiff’s complaint is filed with the court.* Here, the plaintiff timely served the defendant with process 75 days after filing the complaint.
*The 90-day deadline for service of process applies to defendants in the U.S. For defendants in a foreign country, most federal courts require that process be served with due diligence.
Educational objective:
Process can be served by (1) following the rules of the state where the court is located or where service is made, (2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or (3) leaving the summons and complaint at the defendant’s dwelling with a resident of suitable age and discretion.
Question 4999 (MBE Exam #3 PM)
An employee brought an action in federal district court based on sexual harassment claims under Title VII. The employer, in his answer, alleged that the employee voluntarily terminated her employment after the termination of a consensual sexual relationship with her supervisor. In the alternative, the employer alleged that the employee’s poor job performance justified her termination. The court, finding that these allegations were mutually exclusive, ruled that the employer could not plead both and ordered the employer to strike one.
Are the court’s ruling and order correct?
A. Yes, because, while alternative allegations are permissible, inconsistent ones are not.
B. Yes, because the employer’s allegations were made in an answer rather than a complaint.
C. No, because a court on its own may not strike a defense from a pleading.
D. No, because alternative and inconsistent allegations are permitted.
D. No, because alternative and inconsistent allegations are permitted.
Answer choice D is correct. Both alternative and inconsistent defenses may be alleged in an answer. Answer choice A is incorrect because, as noted with answer choice D, inconsistent as well alternative defenses may be pled. Answer choice B is incorrect because the rule regarding alternative and inconsistent allegations applies to defenses in an answer as well as claims in a complaint. Answer choice C is incorrect because a court may, on its own motion, order that material, including a defense, be stricken from a pleading.
PLEADINGS - Answer
Question 4992 MIX MBE PQ S4
An employer brought suit against a former employee for damages due to breach of fiduciary duty. The complaint, which was properly filed in federal district court, alleged that the claim arose out of the former employee’s management of a competing business while he was an employee of the employer. The former employee, in his timely filed answer, admitted the employer’s allegations but alleged that the employer failed to pay the former employee commissions earned while an employee of the employer. The former employee then asserted that this allegation constituted an affirmative defense to the employer’s action. The former employee’s answer also contained a counterclaim for the unpaid commissions and unreimbursed expenses. Ten days after service of the answer, the employer responded to the counterclaim with a denial that the former employee had not been paid commissions owed. Twenty days after service of the answer, the employer moved to strike the former employee’s affirmative defense. An employer’s failure to compensate an employee does not constitute an affirmative defense to a breach of fiduciary duty action by the employer under the applicable jurisdiction’s law.
How should the court rule on the employer’s motion to strike?
A Grant the motion, because the employer denied the former employee’s allegation that he had not been paid commissions earned while an employee.
B Grant the motion, because the affirmative defense is insufficient as a matter of law.
C Deny the motion, because the employer could have filed a motion for judgment on the pleadings.
D Deny the motion, because it was not timely filed.
Answer choice B is correct. If a pleading contains an insufficient defense, a party must move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within 21 days after being served with the pleading. Here, the defense is insufficient as a matter of the applicable jurisdiction’s law, so the motion to strike should be granted. Answer choice A is incorrect because the employer’s denial of the former employee’s allegation regarding unpaid commissions does not establish the insufficiency of the employee’s affirmative defense. Instead, the denial merely creates a genuine dispute regarding a material fact. Answer choice C is incorrect because, although the employer could have filed a motion for judgment on the pleadings, the availability of that option does not prevent the employer from pursuing a motion to strike instead. Answer choice D is incorrect. Generally, a motion to strike must be filed before a response to a pleading is made. Here, the employer filed an answer to the counterclaim prior to filing the motion to strike. However, while the employer was entitled to respond to the counterclaim by filing an answer, the employer, absent a court order, was not entitled to file a reply to the affirmative defense asserted by the former employee in his answer. Consequently, since a responsive pleading to the affirmative defense was not permitted, the employer had 21 days from service of the answer to file a motion to strike the insufficient defense. Since the employer filed such a motion 20 days after service of the former employee’s answer, the motion was timely.
PLEADINGS - Motions Against the Complaint
