Civ Pro

Question 1

For purposes of diversity jurisdiction, the state citizenship of an individual is determined by

Answer 1

the state citizenship of an individual is the state in which he has his permanent home and to which he intends to return.

Question 2

For purposes of diversity jurisdiction, a corporation is considered to be a citizen of

Answer 2

a corporation is deemed to be a citizen of every state in which it is incorporated and the one state in which it has its principal place of business. Thus, it is possible for a corporation to have two or more state citizenships for diversity purposes.

Question 3

A party’s state citizenship for purposes of diversity jurisdiction is determined

Answer 3

when the lawsuit is filed

Question 4

For a claim brought under diversity jurisdiction, __________ is required to be alleged as damages to satisfy the jurisdictional amount

Answer 4

an amount that exceeds $75,000 is required to be alleged as damages to satisfy the jurisdictional amount, exclusive of interest and costs

Question 5

A citizen of State A asserted a state law claim of $80,000 against a citizen of State B in the federal district court. The State B citizen has a state law claim against another citizen of State B for $90,000 that arose out of the same transaction or occurrence as the original complaint. As a result, the State B citizen brought a third-party action against that person.

Does the court have subject matter jurisdiction over the State B citizen’s claim in the third-party action?

Answer 5

Yes, because the court has supplemental jurisdiction.

Question 6

In a diversity case, the federal court applies what law?

Answer 6

the law that would be applied by the courts of the state in which the federal court is located (including state’s choice of law rules)

Question 7

Diversity of citizenship jurisdiction is available when (2)

Answer 7

(i) there is complete diversity of citizenship, meaning that each plaintiff is a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000

Question 8

A partnership is a citizen of …

Answer 8

each state of which one of its partners is a citizen, both limited and general

Question 9

Once one claim satisfies the requirements for original federal subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims when…

Answer 9

the claims are derived from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding.

Question 10

For cases based solely on diversity, supplemental idx is not available for claims by the P against persons made parties under imp leader rules when….

Answer 10

when use of supplemental jurisdiction would be contrary to the requirements of diversity jurisdiction.

Question 11

While working on a site in State A, a State B construction worker was standing near a steel crane when the crane’s boom swung near a high tension power line. The worker was electrocuted and severely injured. The worker filed an action in federal district court against the power company that owns the power lines. The action seeks $500,000 and alleges that the power company’s negligent construction, maintenance, and operation of the power lines caused the injury. The power company is a State A corporation and all its operations are in State A. The power company filed a third-party complaint against the owner-operator of the crane, a State B citizen. The third-party claim is based on state law and alleges that the crane’s owner-operator is liable to the power company for any liability the power company has to the injured worker. The worker amended his complaint to add a state law negligence claim for $500,000 against the crane’s owner-operator.

Does the federal court have subject matter jurisdiction over the worker’s claim against the owner-operator of the crane?

Answer 11

No, because the court does not have supplemental jurisdiction over the worker’s claim against the owner-operator of the crane.

Explanation: The court does not have subject matter jurisdiction over the worker’s claim against the owner-operator of the crane. Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff must be a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. The citizenship of an individual is his domicile, and a corporation is a citizen of every state in which it is incorporated and the one state in which it has its principal place of business. Here, the worker is from State B and the power company is a State A corporation with all its operations (and therefore its principal place of business) in State A. The plaintiff’s claim is for $500,000, satisfying the amount in controversy requirement. Accordingly, there is diversity of citizenship jurisdiction over this claim. Once one claim satisfies the requirements for original federal subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. However, for cases based solely on diversity, supplemental jurisdiction is not available for claims by the plaintiff against persons made parties under the impleader rules when use of supplemental jurisdiction would be contrary to the requirements of diversity jurisdiction. In the instant case, the owner-operator shares state citizenship with the worker and was made a party when the power company impleaded him on a claim for indemnity. Because a claim by the worker against the owner-operator would circumvent the complete diversity requirement, supplemental jurisdiction is not available for that claim. Hence, (A) is correct.

Question 12

to satisfy federal question jurisdiction, the federal question must appear in:

Answer 12

the federal question must appear in the plaintiff’s complaint (well pleaded complaint)

Question 13

A complaint __________ create federal question jurisdiction if it alleges federal issues only in anticipation of some defense

Answer 13

Will not - the federal Q must appear as part of the plaintiff’s cause of action as set out in a well-pleaded complaint

Question 14

When a plaintiff has both federal and state-based claims against a defendant and diversity jurisdiction does not exist, the federal court has

Answer 14

the federal court has discretion to exercise supplemental (pendent) jurisdiction over the claim based on state law if the two claims are so related that they are part of the same case or controversy, which essentially means that they derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding.

Question 15

A court does not have discretion to exercise supplemental jurisdiction over claims if they are

Answer 15

unrelated

Question 16

What is the amount in controversy req for federal question cases

Answer 16

no amount in controversy req for most federal question cases

Question 17

can a court continue to exercise supplemental jdx over a state law claim even though a federal claim is dismissed?

Answer 17

yes they can - MAY

Question 18

cases cannot be removed based on diversity if:

Answer 18

1) D is a citizen of forum state or 2) cannot be removed more than 1 year after case is filed

Question 19

defendant can remove that meets the requirements of: (2)

Answer 19

1) diversity jurisdiction (with limitations) OR 2) federal question

Question 20

A plaintiff brought an action in a state court against a defendant, a city police chief in the state, alleging civil rights violations under 42 U.S.C. section 1983. The defendant moves to dismiss the state suit on the ground that the action must be brought in federal court because a federal question is involved.

Should the court grant the defendant’s motion to dismiss?

Answer 20

No, because the federal courts and state courts have concurrent jurisdiction over the action.

Question 21

The plaintiff, a citizen of State A, filed suit against the defendant, also a citizen of State A, in federal district court, alleging that the defendant had failed to perform a contract to provide 1,000 fully automatic machine guns. The defendant claimed that a recently enacted federal statute made the manufacture of fully automatic machine guns illegal.

Why is there no FQ jurisdiction here?

Answer 21

the recently enacted statute arises only in anticipation of the defendants defense

Question 22

f no federal question is involved and diversity does not exist when a case is commenced, removal will:
Responses

A
Be permitted if the nondiverse parties are thereafter dismissed from the action and the requirements for diversity jurisdiction are then present
Be permitted if the nondiverse parties are thereafter dismissed from the action and the requirements for diversity jurisdiction are then present - no response given

B
Be permitted if the nondiverse parties are thereafter dismissed from the action, the requirements for diversity jurisdiction are then present, and not more than one year has passed since the case was commenced in state court
Be permitted if the nondiverse parties are thereafter dismissed from the action, the requirements for diversity jurisdiction are then present, and not more than one year has passed since the case was commenced in state court - not selected, this is the correct answer

C
Not be permitted under any circumstances
Not be permitted under any circumstances - incorrect

D
Be permitted, because subject matter jurisdiction is not required for removal

Answer 22

B If no federal question is involved and diversity does not exist because a party is a co-citizen of an opposing party (but the amount in controversy is satisfied), removal will be permitted if the nondiverse parties are thereafter dismissed from the action, the requirements for diversity jurisdiction are then present, and not more than one year has passed since the case was commenced in state court. This rule is subject to certain limitations.

Question 23

In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if ….

Answer 23

even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state

Question 24

Only the _____ can exercise the right of removal

Answer 24

defendant

Question 25

When a defendant attempts to remove a case from state court to federal court, the state court ____ have had subject matter jdx over the case

Answer 25

need not

Question 26

two time restrictions on removal of a diversity case to federal court:

Answer 26

(1) a case based on diversity must be removed within 30 days of the defendant’s receipt of a copy of the paper (order, motion, etc.) that makes the case removable; but (2) in no event may the case be removed more than one year after it was commenced in state court

Question 27

If a diversity action is not initially removable but later becomes removable (as by dismissal of a nondiverse defendant), it may not be removed …

Answer 27

more than one year after it was commenced in state court

Question 28

A State A citizen and a State B citizen were in an automobile accident in State B. The State B citizen filed a negligence action for $500,000 against the State A citizen in a federal district court located in State B. The State A defendant would prefer to litigate the case in a State B state court. The State A defendant thus filed a notice of removal, seeking to transfer the case to a State B state court.

Should the federal court grant the motion?
Responses

A Yes, because federal diversity jurisdiction is not needed to protect the State A citizen from the potential bias of State B courts if the State A citizen requests that the matter be litigated in the State B state courts.Yes, because federal diversity jurisdiction is not needed to protect the State A citizen from the potential bias of State B courts if the State A citizen requests that the matter be litigated in the State B state courts. - no response given

B Yes, because tort actions arising from accidents in State B should be litigated in State B state courts.Yes, because tort actions arising from accidents in State B should be litigated in State B state courts. - no response given

C No, because removal to state court is not available for cases that are properly filed in federal court and that are within the federal court’s subject matter jurisdiction.No, because removal to state court is not available for cases that are properly filed in federal court and that are within the federal court’s subject matter jurisdiction. - not selected, this is the correct answer

D No, because removal to state court is not available when one of the parties is a citizen of the state in which the action is pending.

Answer 28

C- a defendant may remove an action that could originally have been brought in the federal courts, based on either a federal question being presented or on diversity of citizenship. However, there is no similar provision that allows a case initially filed in federal court to be moved to state court. (An action that was wrongfully removed from state court to federal court may be remanded back to state court, but that procedure is not applicable here because the case was initially filed in federal court.)

Question 29

Following a default by a defendant, the clerk may sign and enter a judgment for the amount set forth in the plaintiff’s affidavit if: (3)

Answer 29

1. the defaulted defendant is not an infant or an incompetent 2. plaintiff’s claim is for a sum certain 3. the default was entered because the defendant failed to appear.

Question 30

Under certain circumstances, a _______ may be issued without notice to the other party.

Answer 30

Temporary restraining Order

Preliminary injunctions and summary judgments require notice to the other party in order to be issued.

Question 31

when would mailing a copy of the summons and complaint, or emailing, be a valid service of process in federal court

Answer 31

if state law allows

Question 32

Federal courts can follow WHAT for services of process

Answer 32

State rules

Question 33

When is an action deemed to be commenced for SOL purposes in a federal question case or a diversity case?

Answer 33

FQ: complaint is filed
Diversity: State rule applies, so it could be commenced when process is served (depending on JDX)

Question 34

A party can file a motion for new trial ….

Answer 34

no later than 28 days after judgment was entered

Question 35

A motion for judgment as a matter of law should be made before… (JMOL)

Answer 35

submission of the case to the jury

Question 36

MSJ should be filed…

Answer 36

before trial begins

Question 37

Service of process is proper by leaving a copy of the summons and complaint at the individuals place of abode or dwelling with…

Answer 37

someone of suitable age and discretion who resides there

Question 38

Process can be served by

Answer 38

anyone who is at least 18 years old and does not need to be a party

Question 39

Leaving the summons papers is valid service of process as long as…

Answer 39

the process server informs him of the nature of the papers and leaves them in his presence

Question 40

A party may properly implead/maintain a third party claim against a nonparty if….

Answer 40

the nonparty is or may be liable to the party for any part of the judgment that the plaintiff may recover against it

Question 41

A pilot who owned an air charter service adjacent to a crop duster’s hangar at a municipal airport sued the crop duster in federal court for allowing chemicals to contaminate the ground outside the pilot’s office in violation of federal standards. The pilot sought a preliminary injunction against further operations by the crop duster. The court denied the injunction, but agreed to hear the case on the merits. The pilot believes that the pesticides pose an immediate danger, so he appeals the denial of the injunction.

May the pilot immediately appeal the denial of the injunction?

No, because the order is not final.No, because the order is not final. - no response given

No, because the trial court agreed to hear the case on the merits.No, because the trial court agreed to hear the case on the merits. - no response given

Yes, because federal law permits appeal of orders denying an injunction.

Yes, because the pilot will suffer immediate harm.

Answer 41

Yes, because federal law permits appeal of orders denying an injunction.

Question 42

What are the 3 grounds for relief from judgment for which a motion must be made within a reasonable time not to exceed 1 year?

Answer 42

1. Mistake, excusable neglect, 2) fraud/misrepresentation/misconduct by opposing party; 3) newly discovered evidence that by due diligence could not be discovered in time to move for a new trial

Question 43

In a diversity case, federal trial courts are required to apply a _______ when considering a motion for a new trial based on the excessiveness of the verdict.

Answer 43

State law standard

Question 44

a party who wants to receive a jury trial must… (DAY REQ)

Answer 44

file a written demand and serve it on all parties within 14 days after the service of the last pleading directed to the jury triable issue

Question 45

a motion to amend a pleading can be made…

Answer 45

at anytime, even after judgment

Question 46

An issue not raised by the pleadings is treated as if raised in the pleadings if it is tried by

Answer 46

by the parties’ express or implied consent.

In such a case, a party may move-at any time, even after judgment-to amend the pleadings to conform them to the evidence and to raise the unpleaded issue.

Question 47

the clerk may sign and enter default judgment for that amount and costs against the defendant if: (4)

Answer 47

i) the plaintiff’s claim against the defaulted defendant is for a sum certain;
(ii) the default was entered because the defendant failed to appear;
(iii) the defaulted defendant is not an infant or incompetent person; and
(iv) the damages amount requested is not greater than the amount requested in the complaint.

No NOTICE IS REQ’D

Question 48

An elderly woman entered into a contract with a company in the business of providing home care services. Believing that she had been duped by representatives of the company, the woman commenced an action in federal court, properly based on diversity, seeking rescission of the contract. The company answered, denying the principal allegations of the woman’s complaint and asserting a counterclaim against the woman for breach of contract. In addition, the company timely served a demand for a jury trial. The woman did not.

Which statement best describes the roles of the judge and jury as finders of fact in the trial of the parties’ claims?

The judge will first determine the issues relating to the woman’s claim for rescission, and if it concludes the rescission is not warranted, the jury will determine the issues relating to the company’s breach-of-contract counterclaim.The judge will first determine the issues relating to the woman’s claim for rescission, and if it concludes the rescission is not warranted, the jury will determine the issues relating to the company’s breach-of-contract counterclaim.

The jury will first determine the issues relating to the breach of contract claim, and the judge will determine the issues relating to the rescission claim that have not already been resolved by the jury.The jury will first determine the issues relating to the breach of contract claim, and the judge will determine the issues relating to the rescission claim that have not already been resolved by the jury.

The jury will act as the sole finder of fact.The jury will act as the sole finder of fact.

The judge may either act as the sole finder of fact on both the claim and the counterclaim, or allow an advisory jury to try the issues relating to the company’s counterclaim.

Answer 48

The jury will first determine the issues relating to the breach of contract claim, and the judge will determine the issues relating to the rescission claim that have not already been resolved by the jury.

If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim.

Question 49

a party may not make a renewed motion for judgment as a matter of law unless

Answer 49

he has previously moved for judgment as a matter of law at some point during the trial on the issue.

Question 50

For a preliminary injunction, the burden is on the applicant to show what 4 factors?

Answer 50

1) Irreparable harm if not issued;
2) likely to win on the merits;
3) balance of hardships favors you
4) injunction is in the public interest

Question 51

What are the 3 factors for an otherwise nonappealable interlocutory order to be appealable under the Interlocutory Appeals Act?

Answer 51

(i) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case, and (ii) at least two appellate court judges agree to hear the appeal.

Question 52

Nonfinal orders that may be appealable include (specific ex’s)

Answer 52

1. order granting an injunction
2. patent infringement order

Question 53

How many days does a party have to file a notice of appeal if they want to appeal their case

Answer 53

30 days after entry of judgment that they want to appeal

Question 54

When is an action involving multiple claims or parties immediately appealable?

Answer 54

Immediately appealable only to the extent that the court makes an express determination that there is no just reason for delay

Question 55

If a party does not timely object to jury instructions content, the court will use what standard to review them on appeal?

What if a party DOES timely object?

Answer 55

Plain error standard - no objection

Abuse of discretion- DID object and objection is preserved for appeal

Question 56

When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs what standard?

Answer 56

A De novo standard (issue of law)

Question 57

when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a (STANDARD OF REVIEW)

Answer 57

clear showing of abuse of discretion

Question 58

What 3 grounds may a court relieve a party from a final judgment or order within a REASONABLE TIME

Answer 58

(iv) the judgment is void;
(v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or
(vi) any other reason justifying relief from the operation of the judgment.

Question 59

A pedestrian sued a driver for personal injuries in federal court, properly invoking diversity of citizenship jurisdiction. In the complaint, the pedestrian alleged that the driver ran a red light and struck the pedestrian while the pedestrian was in the crosswalk. Concurrent with the accident, a police report was prepared on which the name and address of a witness to the accident was listed, but neither party requested a copy of the report from the police department. Thus, when the pedestrian submitted an interrogatory to the driver for the names and addresses of persons with knowledge of the accident known to the driver, the driver truthfully omitted the name of the witness. When asked during his deposition whether he knew of any witnesses, the driver again truthfully answered “I don’t know of any.”

At trial, the jury found for the driver. In one of the special interrogatories answered by the jury, the jury found that the driver had the green light and that the pedestrian was crossing against the light. Six months and a day after a final judgment was rendered in favor of the driver, the pedestrian’s attorney was contacted by the witness, who stated that the driver ran a red light and that the pedestrian had the “walk” sign when he attempted to cross the road.

The pedestrian’s attorney immediately moved for relief from judgment based on newly discovered evidence, and the trial judge granted the motion. On appeal, what should the court do?

Affirm the trial judge’s decision, because whether to deny or grant a motion for relief from judgment is strictly a matter within the trial judge’s discretion.Affirm the trial judge’s decision, because whether to deny or grant a motion for relief from judgment is strictly a matter within the trial judge’s discretion.

B Affirm the trial judge’s decision, because the driver should have discovered the identity of the witness.Affirm the trial judge’s decision, because the driver should have discovered the identity of the witness. -

C Reverse the trial judge’s decision, because more than six months had passed since the judgment was rendered when the trial judge granted the motion.Reverse the trial judge’s decision, because more than six months had passed since the judgment was rendered when the trial judge granted the motion.

D Reverse the trial judge’s decision, because the pedestrian could have discovered the witness’s identity with reasonable diligence.

Answer 59

Reverse the trial judge’s decision, because the pedestrian could have discovered the witness’s identity with reasonable diligence.

The court may relieve a party from a final judgment or order for newly discovered evidence that by due diligence could not have been discovered. in time to move for a new trial. Here, name and address of the witness could have been easily discovered had the pedestrian’s attorney simply requested a copy of the police report from the PD

Question 60

For claim preclusion purposes, is a voluntary dismissal a valid final judgment on the merits?

Answer 60

No - it is without prejudice. anything that was without prejudice is not a valid judgment on the merits

Question 61

for claim preclusion to apply, the same plaintiff needs to sue the same defendant but in the same…

Answer 61

configuration (same P against same D, not D now suing P)

Question 62

For claim preclusion to apply, it is necessary for the judgement to be….(3)

Answer 62

1) valid 2) final) and 3) on the merits

Question 63

for claim preclusion,

1) when the claimant won the prior suit (D Lost), the claim is said to be….

2) when the defendant won the prior suit (P lost), the claim is said to be….

Answer 63

1) merged into the prior judgment

2) barred by the prior judgment

Question 64

Issue preclusion requires a claim to be brought only…

Answer 64

against a previous party from case 1 (not precluded when you are a nonparty to the action, you have every right to bring up the issue again)

Question 65

Is a voluntary dismissal an adjudication on the merits for claim preclusion/res judicata?

Answer 65

No, without prejudice (can be brought again)

Question 66

Typically only a party in the previous case can use issue preclusion. However, nonparties to case 1 can use issue preclusion when…

Answer 66

the court finds it is fair and equitable for the party to do so (4 fairness factors)