Civ Pro Flashcards
in a single growing season, a virulent parasite infected a large number of acres of wheat across a state. In response to the crisis, Congress established a program by which affected wheat farmers could sell their infected acres to the federal government for fair compensation. Many farmers opted into the program, and the federal government obtained thousands of acres of wheat fields. Congress then established a second program by which the acquired land was leased out to corn and soybean farmers, as studies had shown that these crops could replenish soil after it had been used to grow wheat. Due to the low cost of leasing the land, the farmers were able to sell the crops on the local market at a lower price than other farmers for a substantial profit. Corn and soybean farmers who farmed other land in the state bought an action challenging the constitutionality of the program leasing land to soybean and corn farmers. Which of the following provides the strongest constitutional support for the challenged program?
Answer choice B is correct. Article IV, Section 3 gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” There is no express limit on Congress’s power to dispose of property owned by the United States. Here, the property power of Article IV enables Congress to lease federal property to whomsoever it wishes.
A shareholder in a closely held corporation brought an action against the corporation to compel it to make a $100,000 distribution that had been authorized by the board of directors. The shareholder filed the action in a federal district court for the state in which the corporation was incorporated and had its principal place of business. The shareholder was born and grew up in a neighboring state, but recently moved to a foreign country with the intent to live there permanently, but with no intent to surrender her United States citizenship or acquire foreign citizenship. Does the court have subject-matter jurisdiction over this action?
Answer choice C is correct. In order for diversity jurisdiction to exist with respect to an individual who is a party to an action, the party must either be a citizen of a state or a citizen (or subject) of a foreign country. State citizenship of a party turns on whether the party is domiciled in the state. Here, the shareholder is no longer domiciled in the neighboring state, but instead is domiciled in the foreign country where she currently lives and has the intent to remain permanently. Unlike state citizenship, citizenship in a foreign country generally does not depend on domicile but on whether the individual has taken the necessary steps to become a citizen. Here, since the shareholder does not plan to renounce her United States citizenship or acquire foreign citizenship, she continues to be a United States citizen. As a consequence, she is neither a citizen of a state nor a citizen (or subject) of a foreign country and cannot be a party to an action brought in federal court on the basis of diversity
A traffic accident victim initiated a diversity action for damages stemming from an accident against a truck driver and the corporation who had hired him as an independent contractor for a one-time delivery, to fill in for their own truck driver, who had fallen ill. The victim filed the complaint, which was based on negligence with regard to the truck driver and respondeat superior with respect to the corporation, in the federal district court for State A, the state in which the accident occurred. The truck driver was transporting equipment from State B, the state of incorporation and principal place of business of the corporation, to State C, where the corporation was opening a new plant. The corporation had no business dealings in State A. The victim is a citizen of State D. The forum state has a long-arm statute that permits a state court to exercise personal jurisdiction to the extent permitted by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. What is the corporation’s best argument that the court lacks personal jurisdiction over it?
Answer choice D is correct. In order for a defendant to be subject to the jurisdiction of a court, the defendant must have sufficient minimum contacts with the forum state. While a single contact can be sufficient if the cause of action is based on that contact, an out-of-state corporation is not subject to personal jurisdiction solely because of contacts in the state by an independent contractor. Contacts by a nonresident employer’s agents or employees, on the other hand, are generally imputed to the employer when the agent or employee is acting within the scope of the agency or employment. In this case, the truck driver was acting within the scope of his employment by transporting the equipment through State A when the accident occurred. However, if the corporation can establish that the truck driver was an independent contractor rather than an employee, then the court will not have general jurisdiction over the corporation due to the corporation’s lack of business dealings in State A and would not have specific jurisdiction over the corporation with respect to the accident. Answer choice A is incorrect. While the court does not have general jurisdiction over the corporation due to the corporation’s lack of business dealings in the forum state, the court could have specific jurisdiction over the corporation with regard to the victim’s lawsuit depending on the employment status of the truck driver
Parents of a minor filed a product liability action on behalf of their child in federal district court against a manufacturer. The suit seeks damages of $300,000 from the manufacturer. The minor and the manufacturer are citizens of different states. In addition, the parents of the minor, who are citizens of the same state as the minor, seek to join the action as plaintiffs under the rule for permissive joinder, asserting their own claims for damages totaling $50,000 which arose from the same incident. The manufacturer contends that the court lacks subject matter jurisdiction over the parents’ personal claims. May the court exercise subject matter jurisdiction over the parents’ personal claims?
Answer choice C is correct. The parents’ claims do not satisfy the amount-in-controversy requirement of more than $75,000, and therefore the court lacks subject matter jurisdiction over their claims based on diversity jurisdiction. However, the court may exercise supplemental jurisdiction over their claims because they seek to join this action, over which the court has diversity jurisdiction, under the permissive joinder rule (Rule 20) and their claims arise out of a “common nucleus of operative fact.” Accordingly, answer choices A and B are incorrect. Answer choice D is incorrect because a plaintiff generally may not aggregate his claims with that of another plaintiff for purposes of satisfying the amount-in-controversy requirement.
The defendant, a private employer, summarily fired the plaintiff as a result of a negative performance review. The defendant’s Employee Handbook, however, promised employees that they had 60 days to address concerns raised in performance reviews, before the defendant made a final decision on their employment. The plaintiff’s attorney filed a signed complaint in federal court reciting the foregoing facts and claiming that the defendant violated the Fourteenth Amendment’s Due Process Clause by failing to follow its handbook procedures before firing the plaintiff. Since this Amendment was ratified, however, the Supreme Court has consistently and unanimously held that only state–not private–actors can violate this Amendment. The attorney believes that the Court should reverse this law because it hurts parties, like his client, who are victimized by private actors’ procedural mistakes. The defendant moves for Rule 11 monetary sanctions against the plaintiff. Should the motion be granted?
Answer choice D is correct. Under Rule 11, the court generally has discretion to impose a monetary sanction against the plaintiff’s attorney for violating Rule 11(b). However, under Rule 11(c), the court is not permitted to impose a monetary sanction against a represented party for violating the requirement that legal contentions be warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. Here, it is frivolous for the attorney to argue that the Supreme Court should reverse its bedrock “state action” doctrine because he believes that it hurts parties like his client (which is not a legal argument at all). Therefore, a court cannot impose monetary sanctions against the plaintiff, a party represented by an attorney, on this ground. Answer choice A is incorrect because the plaintiff’s factual contentions have evidentiary support; the problem is that these facts do not justify his legal claim. Answer choices B and C are incorrect for reasons already described.
A buyer sued a dishwasher manufacturer in a federal district court sitting in diversity jurisdiction. The buyer alleged that a manufacturing defect in his dishwasher caused it to leak dirty water into the wall behind the washer. The buyer sought damages to his property as well as personal injury damages arising out of exposure to the mold that resulted from the leak. Prior to commencing suit, the buyer consulted a mold expert. After the expert gave the buyer a written report about the possible health consequences stemming from the presence of the mold, the buyer decided not to call the mold expert as a witness at trial. Instead, he sought out a manufacturing expert whom he believed would be better qualified to testify as to the defect in the dishwasher. In making his required disclosures after filing the complaint, the buyer identified only the manufacturing expert as an expert expected to be called at trial and provided his expert report. The manufacturer, learning that the buyer had consulted a mold expert, moved to compel production of the mold expert’s report. The buyer refused. Which of the following is least likely to support the buyer’s refusal to produce the mold expert’s written report?
The manufacturer can obtain a substantial equivalent to the report without undue hardship. You Selected: The manufacturer has not shown a substantial need for the written report. The mold expert will not testify at trial. Correct Answer: The report is cumulative because the buyer intends to show damages with his other expert’s testimony. Answer choice D is correct. The court is required to limit the frequency or extent of discovery otherwise allowed by the rules if it determines that the discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive. Because the mold expert likely provided different information than the manufacturing expert provided, and because this information was likely relevant to the injuries, this argument is unlikely to permit the buyer to refuse to produce the report
A plaintiff was arrested for murder and then released upon the confession of the actual murderer. The plaintiff filed a complaint in federal district court against the state police officers who had arrested her, contending that they had violated her constitutional rights. The complaint contained a short and plain statement of her civil action based on 42 U.S.C. § 1983. The police officers have filed a motion to dismiss the complaint for failure to state a claim on which relief may be granted. What must the court do when deciding this motion under Rule 12(b)(6)?
Answer choice A is correct. In deciding a motion under Rule 12(b)(6), courts must view the pleading in the light most favorable to the plaintiff. Thus, answer choice B is incorrect. Answer choice C is incorrect because the court must resolve all doubts and inferences in the plaintiff’s favor, not that of the moving party. Answer choice D is incorrect because the court must treat all well-pleaded facts of the complaint as true, not the motion to dismiss.
A plaintiff filed a complaint against her former employer in federal district court, alleging that the employer had discriminated against her in violation of federal law. Two weeks after the complaint was served on the defendant, the defendant served an answer denying the factual allegations in the complaint. Ten days later, the plaintiff filed an amended complaint, adding state law claims. Is the plaintiff entitled to amend her complaint without seeking leave of the court?
Answer choice C is correct. If no responsive pleading is required, a party may amend a pleading once as of right within 21 days. If a responsive pleading is required, the party may amend within 21 days of service of the responsive pleading or within 21 days of being served with a motion to dismiss under Rule 12(b), whichever is earlier. In this case, the plaintiff amended her pleading within 21 days of being served with an answer and was thus entitled to amend her pleading. Answer choices A and B are incorrect because if a responsive pleading is required, a plaintiff may amend her pleading once as of right within 21 days of service of the responsive pleading. Answer choice D is incorrect because although a plaintiff may amend a complaint once as of right, the amendment must be made within the applicable 21-day limitation.
A plaintiff properly filed a complaint in federal district court seeking damages from two defendants. The first defendant properly filed a cross-claim against the second defendant. The second defendant has a claim against the first defendant that arises out of the same transaction as the original complaint. Is the second defendant required to bring this claim in the current action?
Answers: You Selected: No, because it is a permissive cross-claim. No, because it is a permissive counterclaim. Yes, because it is a compulsory cross-claim. Correct Answer: Yes, because it is a compulsory counterclaim. Rationale: Answer choice D is correct. If a party files a claim, a counterclaim, or a cross-claim against another party, the second party must file any claim that that party has against the first party that arises out of the same transaction or occurrence as the first party’s claim. The first defendant is an opposing party with respect to this mandatory claim; accordingly, the second defendant’s claim is a compulsory counterclaim. (Note: A cross-claim may properly be pursued in the current action only if it arises out of the same transaction or occurrence as the original complaint. Consequently, a claim made in response to a cross-claim that arises out of the same transaction or occurrence as the original complaint also arises out of the same transaction or occurrence as the cross-claim.) Answer choice A is incorrect. Although all cross-claims are permissive, the second defendant’s claim is a counterclaim, not a cross-claim. Answer choice B is incorrect. Because the second defendant’s claim arises out of the same transaction as the original complaint, it also arises out of the same transaction as the cross-claim because a cross-claim may properly be pursued in the current action only if it arises out of the same transaction or occurrence as the original complaint. Consequently, the claim in question is a compulsory, not permissive, counterclaim. Answer choice C is incorrect because all cross-claims are permissive.
A car dealership sued a car manufacturer in the federal court for State A for breach of contract, alleging that the cars provided by the manufacturer to the dealership were defective. The car dealership is incorporated in State A where its principal place of business is located. The car manufacturer is incorporated in State B where its principal place of business is located. The federal court for State A has personal jurisdiction over the car manufacturer. The contract that formed the basis of the action contains a forum-selection provision that designated the federal court for State B as the only appropriate venue in which litigation of disputes arising under the contract could be pursued. The car manufacturer has moved to dismiss this action for improper venue. Under the law of State A, a forum selection clause is unenforceable. How should the court rule on this motion?
Correct Answer: Deny this motion, because the federal court for State A had personal jurisdiction over the car manufacturer.
Answer choice C is correct.
In general, venue in a federal civil action is proper in (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located. A defendant that is an entity with the capacity to sue and be sued, regardless of whether incorporated, is deemed to reside in any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question.
Since the federal court for State A has personal jurisdiction over the car manufacturer, venue is proper in State A. Answer choice A is incorrect because, while the contract in question contains a forum-selection clause and this clause could be given effect by the federal court if the car manufacturer sought to transfer the case to a federal court for the State B, this clause does not affect whether venue is proper. Answer choice B is incorrect because, although the enforceability of the forum selection clause under federal law would permit the federal court for State A to transfer this case to the federal court for State B, it is not relevant to the question of whether venue is proper in the federal court for State A. Answer choice D is incorrect because (i) the issue of proper venue in a federal diversity jurisdiction case is a procedural issue that is governed by federal law, not state law; and (ii) the enforceability of the forum selection clause, regardless of the applicable law, is not relevant to the question of whether venue is proper in the federal court in State A. Note, however, that if the defendant had moved to transfer to the federal court for State B based on the contract’s forum selection provision (rather than to dismiss the action for improper venue), the court most likely would transfer the case to the federal court for State B. The Supreme Court has held that although a forum selection clause does not render venue improper in other districts, a motion to transfer to the forum state agreed to by the parties should be granted in “all but the most unusual cases.”
A surgeon was operating on a patient using a new device she invented. Unfortunately, the patient died. The patient’s husband has filed a wrongful death lawsuit against the surgeon in federal court. The husband retained an expert witness who will testify at trial that the device used by the surgeon was defective and the cause of the patient’s death. The husband disclosed the identity of this expert witness and provided the expert’s report to the surgeon 30 days before the date set for trial, although the husband could have made the disclosure several months earlier. At that time, the surgeon had already hired her own expert witness to testify as to the safety of the new device. The disclosure of the husband’s expert witness had no impact on the surgeon’s pre-trial preparation. Can the husband’s expert testify at trial?
Correct Answer: Yes, because the failure to timely make the expert disclosures was harmless.
Answer choice B is correct.
Under Rule 37(c)(1), if a party fails to make or supplement its automatic disclosures as required by Rules 26(a) and (e), then the party will not be permitted to use the documents or witnesses that were not disclosed unless the nondisclosure was substantially justified or was harmless.
For experts: 90 days generally. 30 days if your expert just intends to rebut the other sides expert.
Here, the husband’s expert witness disclosure was not timely. Expert witness disclosures must occur at least 90 days before the date set for trial. However, because the failure to disclose in a timely manner was harmless to the surgeon, the husband can use the testimony at trial. For this reason, answer choice C is incorrect. Answer choice A is incorrect because expert witness disclosures must occur at least 90 days before the date set for trial. Answer choice D is incorrect. Although the disclosures could have been made several months earlier and thus nondisclosure was not substantially justified, it was harmless. Therefore, the testimony could be used at trial.
A consumer from State A brought a strict products liability action in state court in State B against an engine manufacturer and a retailer, alleging $80,000 in damages. The engine manufacturer and the retailer were both incorporated and had their principal places of business in State B. After being properly served, the engine manufacturer filed a notice of removal based on diversity jurisdiction with the federal district court in State B. The retailer joined in and consented to the removal by the engine manufacturer.
Is removal proper?
Correct Answer: No, because the engine manufacturer and retailer are citizens of State B.
Answer choice D is correct. If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed. In this case, both the engine manufacturer and the retailer, the defendants, are citizens of State B, the state in which the action was filed by the consumer. Therefore, they cannot remove the case to the federal district court in State B. Answer choice A is incorrect. The federal district court in State B has subject-matter jurisdiction over the claim based on diversity because there is complete diversity and the amount in controversy exceeds $75,000. Although subject-matter jurisdiction exists and the case could properly have been brought in the district court, the case cannot be removed because the defendants are citizens of the state in which the action was filed. Answer choice B is incorrect. All defendants who have been properly joined and served are required to join in or consent to the removal. However, the fact that both defendants consented to removal here does not automatically make removal proper. Answer choice C is incorrect because removal is proper if the claim arises under state law, so long as the other requirements of diversity jurisdiction are met and no other bars to removal exist.
The defendant lives in State A. He commutes to work in nearby State B, where he does most of his shopping (State B has no sales tax). The defendant spends a month each summer vacationing in State C. While driving from home to State C, Defendant traveled through State D for the first time, where he negligently hit and totaled the $100,000 sports car of the plaintiff, a State D citizen. The defendant continued on to State C, where he vacationed for several weeks. The day after the accident, the plaintiff filed a complaint in federal court and sought to serve process on the defendant the next day, either personally or by mail. States A, B, C, and D all have statutes authorizing personal jurisdiction over anyone who engages in activity within the state, to the extent permissible under the U.S. Constitution.
Assuming subject-matter jurisdiction is proper, in which state is the plaintiff least likely to find personal jurisdiction over the defendant?
Correct Answer: State B
Answer choice B is correct. Defendant is neither domiciled nor present in State B, so on the day after the accident, State B would have no personal jurisdiction over him. Answer A is incorrect because personal jurisdiction exists in the state in which the defendant is domiciled, which is likely State A, the state in which he lives. Answer C is incorrect because the defendant is voluntarily present in State C and may be served with process there. Answer D is incorrect because, under the long-arm statute of State D, the defendant may be sued in State D. By driving his car there, D may be sued for an accident that resulted from that activity.
At the conclusion of a relatively uncomplicated negligence action based on diversity jurisdiction, the federal district court judge submitted the case to the jury for deliberation. The judge explained to the jurors that they would be making written findings of fact as to the negligence and percentage of fault of each party. After the jury had deliberated for more than a day, the foreman of the jury notified the court that the jury had reached an agreement as to each of the written findings of fact. When the jury filed back into the courtroom, it was obvious that one juror was upset and angry. In open court, the foreman read the findings from the form that had been supplied to the jury. Immediately after the jury’s findings were read in open court and before the judge dismissed the jury, the defendant’s attorney, noting the unusual length of the jury’s deliberations and the one juror’s emotional state, requested that the judge poll the jury.
Must the judge poll the jury?
You Selected: Yes, because the defendant’s attorney made a timely request to poll the jury.
Answer choice A is correct.
After the jury returns a verdict and before the jury is dismissed, the court must poll the jurors individually if a party requests. The defendant’s attorney’s request to poll the jury was timely because it was made after the jury had returned its special verdict (a written finding made by the jury on each issue of ultimate fact) and before the judge dismissed the jury. Consequently, the court is required by Federal Rule of Civil Procedure 48(c) to poll the jury.
Answer choice B is incorrect because Federal Rule of Civil Procedure 48(c) does not require the party making a request for the court to poll the jury to provide a reason for the request. It is sufficient that a party make a timely request that the jury be polled. Answer choice C is incorrect because there is no restriction on a party’s right to have the jury polled based on the type of verdict rendered by the jury. Answer choice D is incorrect because, although at one time the right of a party to poll the jury was only specifically granted in the Federal Rules of Criminal Procedure, this right has been added to the Federal Rules of Civil Procedure.
