Chapter 6 Pleadings Flashcards
A 17-year-old State A college student was involved in a car accident with a pedestrian. The pedestrian initiated an action against the college student in State B federal court, seeking $100,000 in damages on a negligence claim. Under State B law, service on a minor is to be made upon the minor’s parent, guardian, or any person having legal custody of the minor or, if none are available, upon any other person with whom the minor resides. State A has the exact same law governing service of process on minors. The pedestrian achieved service by having a process server serve the summons and complaint on the college student’s mother in State A. The college student no longer lives with the mother but rather lives in an apartment near the college. The mother promptly mailed the summons and complaint to the college student. The college student responded to the complaint two weeks after the mother received it by filing a motion to dismiss for improper service of process. How is the court likely to rule?
Deny the motion, because service was made consistent with State A law.
ABC, Inc. initiated a breach of contract action in State A federal court against XYZ Corp. ABC achieved service by having a process server deliver the summons and complaint to a member of the XYZ Board of Directors in State A, as is permitted under State A law. XYZ timely responded by filing a motion to dismiss for insufficient service of process. How is the court likely to rule?
Deny the motion, because State A law permits service in this manner.
The driver of a car brought an action against a pedestrian for negligence in State A federal court by filing a complaint on June 1, 2017. On June 23, 2017 the driver served a copy of the summons and complaint by personally delivering them to the pedestrian’s home in State A. Because the pedestrian was not there, the process server gave the summons and complaint to the 17-year-old babysitter who answered the door. The babysitter lives down the street from the pedestrian. After receiving the complaint from the babysitter, the pedestrian filed a motion to dismiss for lack of personal jurisdiction. The court denied the motion. The pedestrian then filed an answer denying all of the allegations in the complaint and raising the defense of insufficient service of process. How should the court respond to the defense?
Reject the defense, because the pedestrian has waived his right to challenge the sufficiency of service of process by previously filing a motion to dismiss for lack of personal jurisdiction.
A plumber filed a breach of contract claim against a homeowner in federal court. The homeowner responded by filing an answer in which the defenses of lack of subject matter jurisdiction and insufficient service of process were raised. Has the homeowner waived this latter defense?
No, because the homeowner has not previously filed any motions under Rule 12.
A welder filed a wrongful termination claim against his employer in federal court. The employer moved to dismiss for lack of subject matter jurisdiction, which the court denied. The employer now files an answer in which it raises the defenses of a lack of personal jurisdiction and failure to state a claim. Has the employer waived either of these two defenses?
Only the personal jurisdiction challenge has been waived, because such challenges must be raised initially.
A mother initiated an action in State A federal court against an informant in federal court for wrongful death in connection with the death of the mother’s son. In the complaint, the mother stated her claim as follows: “The informant submitted a statement to members of a local gang falsely implicating my son in a recent theft of some of the informant’s property and asked the gang to retaliate against my son by killing him. After this conversation with the informant, the gang members located my son and beat him to death as punishment for the theft they were told he committed. Based on these actions, the informant is liable for wrongful death under State A law.” Under State A’s wrongful death law: (1) surviving parents are permitted to bring wrongful death actions; (2) wrongful death actions are permitted only against persons directly responsible for causing the death; and (3) a recent decision by the Supreme Court of State A held that persons who “expressly solicit” others to kill the decedent may be held liable under the wrongful death law. If the informant responds to the complaint by filing a motion to dismiss this action under Rule 12(b)(6) is the court likely to grant the motion?
No, because the facts alleged in the complaint claim that the informant asked the gang to kill the son.
A pilot filed a breach of contract claim against an airline in federal court. The airline responded with an answer in which it raised the defenses of a lack of personal jurisdiction and improper venue. The court rejected both defenses. After the case was submitted to the jury, the airline sought to dismiss the action for lack of subject matter jurisdiction. May the court consider this defense at this point in the proceedings?
Yes, because a motion to dismiss for lack of subject matter jurisdiction may be made at any time.
On February 1 two homeowners filed a complaint in federal court alleging that a contractor negligently constructed their home, thereby causing them injuries. On February 15 of the same year the contractor filed and served a motion to dismiss for failure to state a claim, arguing that under the applicable state law the contractor is immune from all suits alleging negligence in the construction of homes. In response, on March 15 of that year the homeowners sought to amend their complaint to allege that the contractor was reckless in constructing their home, a claim to which the contractor would not be immune. The contractor objects to the amendment. Should the amendment be allowed?
Yes, because amendments must be freely granted and there is no indication of bad faith or unfair prejudice.
On June 1 a customer filed a complaint in federal court against a State A shopkeeper alleging the following: “On April 2, 2014 the customer slipped on a puddle of water located in an aisle of the store owned by the shopkeeper, severely injuring himself as a result. Therefore, the customer is entitled to $100,000 to compensate for his medical expenses, pain, and suffering.” To be liable for personal injuries occurring on one’s premises under the applicable State A law, the owner of the property (or its employees) must have been negligent in creating or failing to eliminate the dangerous condition or must have been aware of the dangerous condition and failed to warn invitees of the condition. On June 20 of the same year the shopkeeper filed an answer to the complaint denying all of the material allegations. One week later, the shopkeeper filed a motion for judgment on the pleadings based on the customer’s failure to state a claim. How is the court likely to rule on this motion?
Grant the motion, because the customer has failed to allege facts that, if true, show that the shopkeeper was negligent or breached its duty to warn.
On July 1 the owner of a pizza parlor brought an action in federal court against a former employee for embezzlement of $80,000. The former employee was served with the complaint on July 15 that same year and responded with an answer that was served on the owner on the following August 5. Two days later, the owner filed an amended complaint, seeking $100,000 in damages. On August 25 the owner filed a second amended complaint, adding a conversion claim. Is the owner’s second amended complaint permissible as a matter of course?
No, because the owner previously amended the complaint.
After failing to deliver purchased materials in a timely fashion, a wholesaler initiated a breach of contract action in federal court against its supplier. The wholesaler and the supplier were already engaged in a separate breach of contract lawsuit in state court based on the same contract but different events. The supplier responded to the federal complaint with an answer, which it served on the wholesaler on November 1. On November 15 of that same year the state lawsuit reached a final judgment, with a jury finding that the contract at issue was void and unenforceable (assume that the state court had proper jurisdiction and that its judgment is valid in all respects). It is now November 16 of the same year. You represent the supplier in the federal action. Which of the following is the best course of action in light of the recent state court judgment voiding the same contract at issue in the federal case?
File a motion to serve a supplemental answer asserting the state court judgment as preclusive of the issue of the contract’s validity in the federal action.
On January 15 an investor filed and served a securities fraud action in federal court against a broker, alleging that the broker misrepresented material facts pertaining to an investment offer made as a private placement via a confidential offering memorandum. Assume that under federal law, securities fraud claims are only available with respect to registered public offerings, not private placements. On February 1 of that same year the broker responded to the complaint by filing a motion for sanctions under Rule 11 with the court. Should the court grant the motion?
No, because the broker failed to serve the motion on the investor more than 21 days prior to filing it with the court.
A manufacturer filed a federal action against a competitor asserting a claim for tortious interference with prospective economic advantage. The basis for the manufacturer’s claim was that the competitor had contacted a prospective client of the manufacturer and offered to sell a similar product for a lower price. Assume that under the relevant law, this type of conduct would be insufficient to establish tortious interference with prospective economic advantage. Upon reviewing the complaint, the court issued an order to the manufacturer’s attorney to show cause why the attorney should not be sanctioned for filing a complaint for tortious interference with prospective economic advantage based on these facts. After receiving briefs on the matter from both sides, the court issued an order imposing sanctions on the manufacturer’s attorney directing payment to the competitor of the attorney’s fees it had incurred in the action up to that point. Is the court’s order for sanctions appropriate?
No, a court may only order the payment of attorney’s fees under these circumstances in response to a motion for sanctions, not on its own initiative.
A homeowner initiated an action in federal court against a contractor, alleging that the contractor had negligently completed construction of the home the contractor had built for the homeowner. Two months after the pleadings had closed and one week into discovery, the homeowner learned that the wood the contractor used for flooring in the home was not of the quality and origin that the contractor had represented. The homeowner thus sought to file an amended complaint adding a fraud claim against the contractor. The contractor objected to the amendment. How is the court likely to rule on the homeowner’s request to amend the complaint?
Grant it, because the homeowner only discovered the fraud in discovery and the contractor will have a fair opportunity to defend itself against the fraud claim.
On June 1 a patient filed and served a complaint in federal court against a surgeon for medical malpractice based on alleged mistakes the surgeon made during a recent surgery. After the relevant statute of limitations period expired on June 30 of that same year, the patient filed an amended complaint seeking to add the hospital where the surgery occurred as a defendant. The hospital objected to the amendment on the ground that it sought to assert a claim against it that was untimely. Will the amended complaint relate back to the time of filing, thereby defeating the untimeliness challenge?
No, because there are no facts indicating that the failure to name the hospital as a defendant originally was due to a mistake concerning the proper party’s identity.
