Civ Pro

Question 1

Citizenship of Partnership, general and limited, for diversity jurisidiction

Answer 1

the citizenship of each member of a partnership is taken into account when determining the partnership’s citizenship - does not matter if it is a general or limited partner

Question 2

Changing state citizenship solely for the purpose of defeating or creating diversity jurisdiction

Answer 2

A party may voluntarily change state citizenship after the accrual of a cause of action but before the commencement of a lawsuit, and therefore establish or defeat diversity jurisdiction, so long as the change is not a sham.

Question 3

Statutory Interpleader

Answer 3

While federal courts generally do not exercise diversity jurisdiction over probate matters, this restriction is narrowly construed and primarily applies to the probate of a will or the administration of a decedent’s estate.

For a statutory interpleader action, the amount in controversy need only exceed $500, rather than the $75,000 otherwise required for a diversity action. Diversity jurisdiction is met if any two claimants are citizens of different states.

Question 4

A woman is seeking damages of $25,000 to recover for the cost of the treatment, $40,000 for pain and suffering, $10,000 for attorney’s fees, and $100,000 in punitive damages.

Does the woman’s claim satisfy the amount-in-controversy requirement?

Answer 4

In a federal diversity claim, the amount in controversy must exceed the sum or value of $75,000, exclusive of interest, costs, and collateral effects of a judgment. Although interest and costs are excluded from the amount in controversy, attorney’s fees may be made part of the amount in controversy if the fees are recoverable by contract or statute. Punitive damages, as well, may be permitted to be made part of the amount in controversy.

Accordingly, her damages are $175,000 for diversity jurisdiction purposes.

Question 5

Appealability of a Remand Order (i.e. remanding a case to state court for lack of subject matter jurisdiction)

Answer 5

A remand order is generally not reviewable on appeal or otherwise (except for an order remanding a civil rights case removed pursuant to § 1443 or a remand order in a class action, if the application for review is made to the court of appeals not more than 10 days after the entry of the order). Thus, appeal of a remand order to state court would be improper.

Question 6

Can a party be joined under supplemental jurisdiction if they would defeat complete diversity?

Answer 6

Although a federal district court with jurisdiction over a claim may exercise supplemental jurisdiction over additional claims that arise out of a common nucleus of operative fact, the addition of a party cannot defeat complete diversity.

Question 7

Counterclaims - when is it required that the counterclaim meet the amount in controversy and diversity?

Answer 7

A federal court may assert supplemental jurisdiction over a counterclaim that does not satisfy the jurisdictional amount when the counterclaim is compulsory. However, a permissive counterclaim does not qualify for supplemental jurisdiction and therefore must satisfy the jurisdictional amount and the rule of complete diversity.

Question 8

For permissive joinder, can the court exercise supplemental jurisdiction and thus the claim be under the $75,000 requirement?

Answer 8

The court may exercise supplemental jurisdiction over claims for those that seek to join an action, over which the court has diversity jurisdiction, under the permissive joinder rule (Rule 20) when their claims arise out of a “common nucleus of operative fact.”

Question 9

When there is a statute authorizing nationwide service of process, does every court in every federal district have personal jurisdiction?

Answer 9

A statute can contain a provision for nationwide service of process to attain personal jurisdiction. However, this does not mean that each federal court in every federal district would have personal jurisdiction over a defendant sued under that statute. There must be an indication of “minimum contacts” with the state still.

Question 10

Is personal jurisdiction required for quasi-in-rem suits?

Answer 10

Quasi-in-rem jurisdiction requires minimum contacts to exist between the defendant and the forum state before jurisdiction will apply. If the State X court cannot constitutionally assert personal jurisdiction over the defendant, then there is no jurisdiction (either in personam or quasi-in-rem) and the attachment should be quashed.

Question 11

Where is venue proper? Particularly, when there is a contract negotiation involved.

Answer 11

Venue is proper in a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred. Where the contract was negotiated and executed.

Question 12

Where may a nonresident of the US be sued?

Answer 12

A defendant who is not a resident of the United States may be sued in any judicial district.

Question 13

What is the rule for proper venue?

Answer 13

In general, venue in a federal civil action is proper in only one of the following judicial districts: (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.

Venue is proper in the judicial district in which any defendant resides only if all defendants reside in the same state in which the district is located.

Question 14

Where may an action against a federal officer or employee acting in an official capacity or under color of legal authority be brought?

Answer 14

An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in the judicial district in which the plaintiff resides.

Question 15

Transferring venue in the interest of justice

Answer 15

Although venue is improper in the forum court because the accident did not occur in the forum state nor did the defendant truck driver reside there, the forum court may transfer the action to any judicial district in which it originally could have been brought if it determines that such transfer is in the interest of justice.

Question 16

Forum non conveniens

Answer 16

The common-law doctrine of forum non conveniens allows a court to dismiss an action if the court finds that the forum would be too inconvenient. To convince a court to invoke the doctrine of forum non conveniens, the defendant ordinarily bears a heavy burden to displace the plaintiff’s chosen forum. This doctrine as a common-law rule is used by a federal district court primarily when the forum that is deemed most appropriate for the action is a foreign court.

Question 17

Bankruptcy suit, what laws apply in federal court?

Answer 17

If the action is a federal-question claim, then federal substantive and procedural law will control, as well as federal common law. Bankruptcy actions fall under the purview of federal law, so federal substantive and procedural law will apply here. The fact that the state has a law governing debtor-creditor relations is irrelevant.

Question 18

Awarding attorney fees in diversity case

Answer 18

In a diversity case on a state law claim, the federal court may properly use its inherent power to assess attorney’s fees as a sanction for a defendant’s bad-faith conduct during the litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to a successful party.

Question 19

Which of the following provisions of State X’s law would the federal district court in State X not have to apply?

Answers:

A. The elements of the negligence claim
B. Burden of proof
C. Limitations on the awarding of attorney’s fees
D. Statute of limitations

Answer 19

The elements of a claim or defense, statutes of limitations, and burdens of proof are all considered substantive and are controlled by the law of the state in which the district court is located in a federal diversity action. The federal district court must apply State X’s law as to these substantive issues. However, the awarding of attorney’s fees is considered procedural. The federal district court may follow federal law as to attorney’s fees, even if the law of the forum state dictates that attorney’s fees cannot be awarded to a successful party.

Question 20

Determining whether the court should apply federal common law in diversity case

Answer 20

In determining whether to apply state or federal law, the district court will start by determining whether there is a conflict between state and federal law with respect to the issue before the court. If the applicable state and federal laws do conflict, then the district court must ask whether a valid federal statute or Federal Rule covers the disputed issue. If no federal statute or rule is on point, then the court must determine whether federal common law, rather than state law, should be applied. In making this determination with respect to federal common law, the district court will ask whether the failure to apply state law will lead to different outcomes in state and federal court. If the answer is yes, then the court will apply state law, unless affirmative countervailing federal interests are at stake that warrant application of federal law. The Supreme Court has also recognized the application of federal common law when a “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law.

Question 21

May service of process be made following laws of forum state?

Answer 21

Although the federal rules do not specify that service of process is permitted at the defendant’s regular place of business on a person of suitable age and discretion, the federal rules do provide that service of process may be made by following the law of the forum state for service of process.

Question 22

Requirement when serving a US officer or employer, even in individual capacity, assuming the basis is in connection with the duties performed on behalf of the US?

Answer 22

Even though a plaintiff is pursuing an action against a U.S. officer or employer in his individual capacity, the plaintiff is required to also serve process on the United States if the basis for the action is conduct that occurred in connection with duties performed on behalf of the United States.

Question 23

If a defendant waives service, when will the date of service of process be deemed for statute of limitations purposes?

Answer 23

If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service of process.

Question 24

Preliminary Injunction requirements

Answer 24

A preliminary injunction is a form of relief issued prior to a full hearing on the merits, but only upon notice to the defendant and a hearing on whether the injunction should issue. A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits. A plaintiff must show that he is likely to suffer irreparable harm in the absence of relief.

Question 25

Fair Notice Pleading Requirements of 8(a)(2)

Answer 25

To give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests, Rule 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief. Detailed factual allegations are not required, and a complaint should not be dismissed for an imperfect statement of the legal theory, but a party may not merely recite the elements of a cause of action with broad, conclusory statements. In adjudicating a motion to dismiss under Rule 12(b)(6), the court must reject mere conclusory statements and assertions devoid of facts.

Question 26

Motion to Strike when an affirmative defense is insufficient as a matter of law

Answer 26

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. Generally, a motion to strike must be filed before a response to a pleading is made.

Question 27

Requirements for filing an answer - specifically, service and when it has to be filed

Answer 27

A defendant has 21 days after being served with the complaint and summons to serve an answer unless the defendant responds by filing a pre-answer motion under Rule 12. An answer generally must be served on plaintiff’s attorney if the plaintiff has an attorney. Service of an answer may be made by leaving it with a person in charge at the attorney’s office. The answer must also be filed with the court clerk within a reasonable time after service.

Question 28

Adding a new claim against a new defendant v. adding a new claim against a current defendant or changing the defendant

Answer 28

If statute of limitations has ran, cannot add a new claim against a new defendant because the doctrine of relation back will not work. A motion to dismiss would be granted.

Amendment may add a new claim against a current defendant that arose out of the same transaction, conduct, or occurrence. Can also amend and change the defendant IF the defendant knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity.

Amendment as of matter of right is allowed within 21 days of service of the defendant’s answer. After that must get leave of court.

Question 29

Can a defendant amend his answer to include the defense lack of personal jurisdiction?

Answer 29

Pursuant to Rule 15(a)(1)(a), a party may amend its pleading once as a matter of course within 21 days after serving it. Under Rule 12(h)(1)(B), a party waives the defense of lack of personal jurisdiction by failing to include it in a pre-answer motion, a responsive pleading, or in an amendment allowed by Rule 15(a)(1), as a matter of course.

Question 30

Granting leave to amend a pleading

Answer 30

The court should freely give leave to amend a pleading when justice so requires, and amendments are generally allowed unless the amendment would be futile because it would immediately subject the claim to dismissal or it would result in undue prejudice to the opposing party.

Question 31

Best argument against a court requiring attorney’s fees without a motion

Answer 31

A court may impose sanctions, including payment of attorney’s fees, on attorneys, law firms, and parties for violations of Rule 11, but may typically do so only when a party makes a motion for such fees.

Question 32

A bankruptcy trustee filed a complaint in federal district court pursuant to a federal statute to recover property transferred by the debtor after the filing of the bankruptcy petition to two transferees for less than reasonably equivalent value. According to the complaint, one defendant had received real property valued at $250,000, and the other defendant, in an unrelated transaction, had received personal property valued at $25,000. Each defendant received the property as a gift from the debtor. The recipient of the personal property has filed a motion to dismiss due to misjoinder of parties.

Should the court grant this motion?

A. No, because each transferee’s liability is based on the same cause of action.
B. No, because the value of the real property transferred to the non-moving defendant exceeded the amount-in-controversy requirement.
C. Yes, because the two transfers were unrelated.
D. Yes, because the value of the personal property transferred to the movant was less than the amount-in-controversy requirement.

Answer 32

Answer choice C is correct. In order for joinder of defendants to be proper, any right to relief must arise out of the same transaction, occurrence, or series of transactions or occurrences. Here, the transfer of the personal property was unrelated to the transfer of the real property. Consequently, joinder of both defendants in a single action was improper. In addition, when parties are joined, the relief must be sought from them jointly, severally, or in the alternative. While relief can be sought from each defendant with respect to the property that that defendant received from the debtor, neither defendant has responsibility with respect to the property received by the other defendant from the debtor. Answer choice A is incorrect. While it is true that one of the requirements for joinder of parties is that there be a common question of law or fact, there is also a second requirement—any right to relief must arise out of the same transaction, occurrence, or series of transactions or occurrences—which is not met in this case. Answer choice B is incorrect because the amount-in-controversy requirement applies to the issue of subject matter jurisdiction if jurisdiction is based on diversity or supplemental jurisdiction. While the lack of subject matter jurisdiction may preclude an action in federal court against a defendant, it does not directly address the issue of whether the federal rules permit the joinder of parties. Moreover, in this case, subject matter jurisdiction is based on federal question jurisdiction not diversity jurisdiction, so the amount-in-controversy requirement is inapplicable. Answer choice D is incorrect for the same reason.

Question 33

Joining a claim under supplemental jurisdiction

Answer 33

When a district court has diversity jurisdiction over a claim, the common-nucleus-of-operative-facts rule applies to determine whether the court can exercise supplemental jurisdiction over an additional claim. Although the additional claim is not required to satisfy the amount-in-controversy requirement, the addition of the party bringing the claim cannot result in a violation of the requirement for complete diversity of citizenship.

Question 34

A party that wishes to intervene, even as a matter of right

Answer 34

Even when a person seeks to intervene as of right in an action for which subject matter jurisdiction is based solely on diversity jurisdiction, the court must have subject matter jurisdiction over the intervenor’s claim. When the court does not have subject matter jurisdiction over a claim, the court should not permit the person to intervene.

Question 35

Federal statutory interpleader

Answer 35

A federal statutory interpleader action, the value of the property at issue must only exceed $500 and any two claimants must be citizens of different states.

Question 36

Federal interpleader pursuant to Rule 22

Answer 36

A federal action based on interpleader pursuant to Rule 22 requires that the general rules for subject matter jurisdiction be satisfied. For diversity jurisdiction, the citizenship of the party bringing the action must be completely diverse from that of the claimants and the statutory amount in controversy must be met. The claimants need not be diverse among themselves.

Question 37

Federal Statutory Interpleader

Answer 37

For statutory interpleader, diversity jurisdiction is met if any two claimants are citizens of different states. With regard to the amount in controversy, in a statutory interpleader action, the property at issue must merely be $500 or more in value, not meet the $75,000 threshold required for regular diversity matters.

Question 38

Joinder of Claims

Answer 38

A party asserting a claim may join with it as many independent or alternative claims of whatever nature as the party may have against the opposing party. A party asserting a claim may join with it as many independent or alternative claims of whatever nature as the party may have against the opposing party.

Question 39

The purchaser of a condominium unit properly filed an action in federal district court to void the sale of the unit on the basis of fraud. Prior to filing an answer, one of the defendants to this action, the lender, responded by filing a motion to dismiss the complaint against itself, alleging that it was not a party to any fraud. The court granted this motion. Subsequently, the lender brought suit in federal district court against the purchaser to collect on the note that the purchaser had given the lender. The purchaser has filed an answer asserting that the lender’s claim is barred.

Assume that the lender’s claim arose out of the same transaction that was the subject matter of the prior action by the purchaser. Is the purchaser’s defense valid?

Answers:

A. Yes, because the lender’s claim should have been raised as a counterclaim in the prior action.
B. Yes, because the failure to raise a counterclaim in a prior action bars the assertion of that claim in a subsequent action.
C. No, because the lender did not file a pleading in the prior action
D. No, because the lender’s claim was not a compulsory counterclaim in the prior action.

Answer 39

Answer choice C is correct. In the prior action brought by the purchaser, the lender’s claim for payment of the note would have been a counterclaim to the purchaser’s claim. Because it arose out of the same transaction that was the subject matter of this claim, it would have been a compulsory counterclaim that the lender would have been required to assert in its pleadings in that action. However, the lender, instead of filing a pleading (i.e., an answer) in that action, filed a motion to dismiss, which was granted. As a consequence, the lender’s failure to raise its demand for payment of the note in the prior action does not bar the lender from bringing a suit to collect on the note. Answer choice A is incorrect. In the prior action brought by the purchaser, the lender’s claim for payment of the note would have been a compulsory counterclaim that the lender would have been required to assert in its pleadings. But because the lender never filed a pleading, he is not barred from raising the claim in this action. Answer choice B is incorrect because the failure to assert a counterclaim in an action bars the assertion of the claim in a subsequent action only if the counterclaim is compulsory, rather than permissive. Answer choice D is incorrect. The lender’s claim for payment of the note would have been a compulsory counterclaim in the prior action, but the lender did not file a pleading (i.e., an answer) in that case.

Question 40

A plaintiff properly filed an action in federal district court against a defendant for injuries suffered by the plaintiff in a car accident. The plaintiff alleged that the defendant was liable under a respondeat superior theory for the negligent driving of the defendant’s employee. The defendant properly impleaded the employee, asserting a claim against the employee based on indemnification. At trial, the jury reached a general verdict in favor of the defendant. Subsequently, the employee filed an action in federal district court against the defendant, seeking to recover for injuries suffered as a consequence of the accident. The employee has asserted that the accident was caused by the defendant’s failure to properly maintain the car that the employee was driving.

Is the employee barred from pursuing this action?

Answers:

A. Yes, because the employee’s claim arises out of the same occurrence that was the subject matter of the defendant’s indemnification claim.
B. Yes, because the employee failed to assert a cross-claim against the defendant in the prior action.
C. No, because the employee was not the original defendant in the prior action.
D. No, because the prior action was decided by a general jury verdict.

Answer 40

Answer choice A is correct. By impleading the employee, the employer became a third-party plaintiff and the employee a third-party defendant. Since the employee’s claim against the employer (a negligence claim based on the employer’s failure to properly maintain the brakes on the car involved in the accident) arose out of the same occurrence or transaction as the claim that the employer had brought against the employee’s claim was a compulsory counterclaim. Since the employee failed to assert this claim in the first action, the employee is barred from asserting the claim in a subsequent action. Answer choice B is incorrect. The employee’s claim for damages arising from the defendant’s negligence would not be a proper cross-claim. Because the employee was not an original defendant, this claim does not assert that the defendant is liable to the employee for all or part of a claim made by the plaintiff against the employee. In addition, were the employee’s claim to be characterized as a cross-claim, a cross-claim is never mandatory. Answer choice C is incorrect. Although the employee was a third-party defendant in the prior action, the original defendant in that action, the employer, asserted a cross-claim against the employee. As a consequence, the employee was required to plead any claim that the employee had that arose out of the same occurrence that was the subject matter of the defendant’s indemnification claim. Answer choice D is incorrect because the type of jury verdict in the prior action is irrelevant. The employee is barred from raising the issue of the defendant’s own negligence not because the jury necessarily decided this issue, but because the employee failed to raise it by way of a counterclaim in the prior action.

Question 41

May a court adjudicate a joined claim in which the court lacks subject matter jurisdiction over?

Answer 41

A party asserting a claim may join even unrelated claims against the opposing party if the court has subject-matter jurisdiction over the new claims. If the original claim is based on federal-question jurisdiction, then a nonfederal claim may be joined only if diversity jurisdiction exists or if the new claim arises out of the same case or controversy as the initial claim such that supplemental jurisdiction applies.

Question 42

Requirements under the Class Action Fairness Act

Answer 42

In order to take advantage of the relaxed subject matter jurisdictional rules of the Class Action Fairness Act (CAFA), the amount-in-controversy must exceed $5 million. CAFA requires that the class contain at least 100 members. While most class actions require that none of the class representatives be a citizen of the same state as any of the defendants, only minimal diversity is required under the CAFA. Only one class member must be a citizen of a state of which none of the defendants is a citizen. While most class actions require that at least one member of the class have damages in excess of $75,000, there is no requirement under the CAFA that any member of the class have such damages.

Question 43

If interrogatories are served on a nonparty, how may the nonparty to respond?

Answer 43

Interrogatories may only be served on a party to a lawsuit; they may not be used on nonparty witnesses. A nonparty has no obligation to answer any of the interrogatories served on him.

Question 44

Requirement for jury verdict in federal court

Answer 44

Under the Federal Rules of Civil Procedure, a jury verdict must be unanimous, unless the parties stipulate otherwise. Under the federal rules, a jury verdict must be returned by a jury of at least six members. Although the federal rules do permit a six-member jury to render a verdict, the rules require that regardless of the size of the jury, the verdict be unanimous.

Question 45

When new evidence is discovered, what is the time requirements for filing a motion for relief from judgment?

Answer 45

A motion for relief from judgment under Rule 60(b) must be filed within a reasonable time and no later than one year following the entry of the judgment. Furthermore, the court is not required to order a new trial but may do so on its own initiative or upon the motion of a party based on the discovery of new evidence.

Question 46

If an appeal is granted, what is the effect on the district court proceedings?

Answer 46

If an appeal is permitted, it will not stay proceedings in the district court unless the district court or the court of appeals so orders.

Question 47

If a court rules on liability but not on damages, can an opposing party prevent appeal?

Answer 47

Yes, Under the final judgment rule, a federal appellate court has jurisdiction over an appeal of a final judgment of the trial court. A final judgment is a decision on the merits that leaves nothing for the court to do but execute the judgment.

Question 48

For res judicata, and there are two promissory notes were received for a single sale of goods, are these sufficiently identical so that if there was a ruling on one the other would be precluded under res judicata?

Answer 48

One of the requirements imposed on the affirmative defense of claim preclusion is that the causes of action in the two lawsuits must be sufficiently identical. In applying the transactional approach to determine whether the two lawsuits in this case are sufficiently identical, although each promissory note was given by the buyer for the same sale of goods, the buyer gave two notes rather than a single one.

Question 49

After an appeal has been filed and placed on the appellate court’s docket, may a party make a motion with the trial court to correct the judgment award for a clerical mistake on the judgment award?

Answer 49

Rule 60(a) allows a court to correct a clerical or other mistake resulting from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may make such a correction on motion by a party or on its own initiative, with or without notice. However, once an appeal from a judgment or order has been docketed in the appellate court, such a correction can be made only with leave of the appellate court.

Question 50

Timing requirement for an appeal

Answer 50

A judgment or order certified under Rule 54(b) must generally be appealed within 30 days from the date of the entry of the certified judgment.

Question 51

When does a federal district court have federal question jurisdiction over a cause of action arising under state law?

Answer 51

A federal district court does not have federal question jurisdiction over a cause of action arising under state law unless the court determines that the interpretation or application of state law may affect the outcome and the federal issue or interest is important enough to justify the exercise of jurisdiction. In order for federal question jurisdiction to exist when the cause of action is based in state law, the court must determine whether the state-law claim necessarily stated a substantial and disputed federal issue that a federal court could adjudicate without disturbing the balance of federal and state judicial responsibilities.

Question 52

If a defendant files a motion to dismiss for failure to state a claim, how should a court rule on a later filed motion to dismiss for lack of personal jurisdiction?

Answer 52

The defendant waived what would have been a valid defense of lack of personal jurisdiction by failing to include this defense in his initial motion to dismiss. The defense of lack of personal jurisdiction is waived if it is omitted from the first pre-answer motion made by the party.

Question 53

If, sitting in federal diversity suit, there is no state supreme court case law on the issue at hand what may the federal court do? What if, after ruling on the matter, the case is on appeal, and then the state court issues an opinion addressing the matter, what should the appeal court do in viewing the appeal?

Answer 53

When a forum state’s highest court has not spoken on an issue, a federal district court sitting in diversity must try to determine how the state’s highest court would rule on the issue, if it did consider it. To make this determination, the federal court will generally look to any lower state-court decisions that have considered the issue and will follow a lower court’s view, unless it believes that the highest state court would not follow it. If, after a federal district court action has been completed, the state’s highest court rules on an issue in a way that is different from the way the district court predicted, then a federal appeals court is bound by the state court’s ruling.

Question 54

In a motion to dismiss for failure to state a claim where there are attached materials outside the pleadings to the motion, how must the court treat the motion?

Answer 54

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice. When a defendant files a motion to dismiss for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion.

Question 55

Can a court order a date on which defendant must respond by?

Answer 55

Yes. Unless the court orders otherwise, a party must respond to an amended pleading within the later of 14 days after service of the amended pleading or the time remaining for response to the original pleading.

Question 56

Does an added party need to independently meet the diversity jurisdiction requirements when added as a compulsory counterclaim?

Answer 56

Compulsory counterclaims and the joinder of additional parties to compulsory counterclaims fall within the court’s supplemental jurisdiction. Thus, it is irrelevant that the defendant’s claim against the motorcyclist could not independently meet diversity jurisdiction.

Question 57

When is leave of court required for depositions?

Answer 57

Unless the parties agree to the deposition, leave of the court must be obtained to (i) exceed the 10-deposition limitation, (ii) depose a witness a second time, or (iii) depose a person before the deposing party has complied with its initial disclosure requirements under Rule 26(a).

Question 58

May parties stipulate to have less than 6 jurors?

Answer 58

A case may be tried before and a verdict returned by less than a six-member jury, if the parties so stipulate.

Question 59

Appealing an order granting or denying a class action certification - time limits and is it a matter of right?

Answer 59

A court of appeals may permit an appeal from an order granting or denying class action certification if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. The court of appeals has discretion to deny the appeal.

Question 60

In diversity actions, is the court bound by conflict-of-laws rules of state in which court is located? Further, is the right to a jury trial procedural or substantive?

Answer 60

In diversity actions, a federal district court is generally bound by the conflict-of-law rules of the state in which the district court is located. Questions about the right to a jury trial are considered procedural and are determined by the law of the forum state.

Question 61

In a diversity action involving a choice-of-laws rules of the state, what areas are generally considered procedural and thus controlled by the law of the forum state

Answer 61

Questions about the following issues are generally considered procedural and controlled by the law of the forum state:

i) The proper court in which to bring an action;
ii) The form of the action to be brought;
iii) The sufficiency of the pleadings;
iv) The effect of splitting a cause of action;
v) The proper or necessary parties to an action;
vi) Whether a counterclaim may be brought;
vii) Venue;
viii) The rules of discovery;
ix) The right to a jury trial;
x) Service of process;
xi) The burden of proof;
xii) Trial procedure; and
xiii) The methods of enforcing a judgment.

Question 62

Is an immediate appeal available for an order that appoints or refuses to appoint a receiver

Answer 62

Although generally a district court order that does not constitute a final order is not immediately appealable, there is a special statutory exception for an order that appoints or refuses to appoint a receiver.

Question 63

Is a court required to offer remittitur before granting a new trial because of excessive damages?

Answer 63

A trial court has discretion to grant a motion for a new trial on all or some issues for a variety of reasons, including an excessive verdict. A court could offer a plaintiff a remittitur (a reduction of the verdict amount) and grant a new trial on the condition that the remittitur was not accepted, but is not required to give the plaintiff that option.

Question 64

What law is applied for service of process and personal jurisdiction. Further, when is the bulge provision applicable?

Answer 64

A federal court must generally determine whether personal jurisdiction exists as if it were a court of the state in which it is situated. The service of a summons in a federal action establishes personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.”

Although there is a ‘bulge provision” in the federal rules that provides for service of process on a party within 100 miles of the forum court even if state law would not otherwise permit such service, this provision only applies to a third-party defendant joined under Rule 14 or a required party joined under Rule 19.

Question 65

A potential renter, a resident of State A, was searching for an apartment. The renter completed an application for a lease at an apartment complex located in State A, which was owned and managed by an apartment management company. The apartment management company’s principal place of business was in State A, but it was incorporated in State B. The renter fulfilled all the requirements detailed in the application, yet the management company refused to offer her a lease. Suspecting that the management company refused to rent to her because of her ethnicity, the renter filed a claim under the Federal Fair Housing Act in State A state court seeking damages of $100,000. If the management company seeks to remove the action to the federal district court located in State A, will it be successful?

Answer 65

Yes, because the federal district court has original federal question jurisdiction. Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed by the defendant to the district court for the district in which the state court action was commenced.

Question 66

Can a plaintiff remove a case to federal court?

Answer 66

No. Removal of a state action to federal court is a right that can only be exercised by a defendant. A plaintiff cannot remove an action filed in state court to a federal district court in the same state.

Question 67

A mother and her son were both injured at a construction site. They brought a negligence action in federal court against the construction company for failure to exercise reasonable care with respect to their presence at the site. The mother alleged in good faith that she suffered $55,000 in damages; her son alleged in good faith $200,000 in damages. Subsequently, they permissively joined as a defendant under Rule 20 an individual whose intentional actions in tampering with warnings posted by the construction company also allegedly caused their injuries. The mother and her son are citizens of the forum state; the two defendants are citizens of other states. The individual defendant has moved to dismiss the mother’s claim against it for lack of subject-matter jurisdiction. How should the court rule?

A. Grant the motion, because the mother’s claim was asserted against a defendant who was permissively joined under Rule 20.
B. Grant the motion, because supplemental jurisdiction does not apply to a claim for which diversity jurisdiction does not exist.
C. Deny the motion, because there is complete diversity between the parties.
D. Deny the motion, because the court has supplemental jurisdiction over the mother’s claim.

Answer 67

Answer choice A is correct. The court does not have diversity jurisdiction over the mother’s claim against the individual defendant, even though there is complete diversity between the parties, because her claim does not exceed $75,000. Nor can the court exercise supplemental jurisdiction over her claim against the individual defendant. The mother’s claim does form part of the same case or controversy as her son’s claim and the court does have diversity jurisdiction over his claim because it meets both the amount-in-controversy and diversity-of-citizenship requirements. Despite that, because the mother’s claim is made by a plaintiff against a party permissively joined under Rule 20, the court cannot exercise supplemental jurisdiction. Answer choice B is incorrect because supplemental jurisdiction may apply to a claim for which there is no diversity jurisdiction, but does not in this case as discussed with respect to answer choice A. Answer choice C is incorrect because, even though there is complete diversity between the parties, the court does not have diversity jurisdiction over the mother’s claim because her claim does not exceed $75,000. In addition, the court cannot exercise supplemental jurisdiction over this claim, as discussed with respect to answer choice A. Answer choice D is incorrect because, even though the court has diversity jurisdiction over the son’s claim against the individual defendant, the court cannot exercise supplemental jurisdiction over the mother’s claim against this defendant, as discussed with respect to answer choice A.

Question 68

Does a defendant have to make an insurance agreement available for a plaintiff even if it is not requested?

Answer 68

Yes. Unless otherwise agreed by stipulation or ordered by the court, each party must provide to the other parties for inspection and copying, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. Accordingly, the defendant is required to make the insurance agreement available to the plaintiff even if the plaintiff does not ask for it.

Question 69

Are injunction rulings appealable as a matter of right?

Answer 69

Although most non-final (interlocutory) orders cannot be appealed, orders concerning injunctions are appealable immediately as of right.

Question 70

The driver of a truck was involved in an accident with a car driven by a citizen of a foreign country. The truck driver filed suit in a federal district court in the state in which the accident occurred, where the truck driver was domiciled. The driver of the car was a permanent legal resident of the United States and was domiciled in this state as well. The truck driver alleged damages of $35,000 in good faith due to personal injuries and damages of an additional $50,000 due to property losses. As permitted by state law under a direct action statute, the suit named only the insurer of the car as a defendant. The insurer was incorporated in a neighboring state and had its headquarters in a distant state. The insurer timely moved to dismiss the action due to lack of subject-matter jurisdiction. How should the court rule on this motion?

A. Grant the motion, because alienage jurisdiction does not exist.
B. Grant the motion, because diversity of citizenship does not exist.
C. Deny the motion, because the amount in controversy exceeds $75,000.
D. Deny the motion, because the insurer is not a citizen of the forum state.

Answer 70

Grant the motion, because diversity of citizenship does not exist. Answer choice B is correct. In order for subject-matter jurisdiction to exist in an action based on state law, the action must satisfy both the amount-in-controversy requirement and the diversity requirement. Here, the action satisfies the amount-in-controversy requirement, since the plaintiff is permitted to aggregate personal injury and property loss that arises from the incident in question. The aggregated amount, of $85,000 ($35,000 + $50,000), exceeds $75,000. But, the action does not meet the diversity requirement. As a corporation, the insurer is a citizen of the state of its incorporation and also a citizen of the state of its principal place of business. However, an insurer is also deemed to be a citizen of the insured’s state when the insurer is sued in a direct action. Here, the insured’s state is the forum state for purposes of diversity jurisdiction because the insured is a lawful permanent resident of the United States domiciled in the forum state. Consequently, diversity jurisdiction does not exist between the plaintiff-truck driver and the defendant-insurer. Answer choice A is incorrect because this is not an action between the truck driver and the driver of the car, but a direct action against the insurer, a United States corporation. Answer choice C is incorrect because, even though the amount-in-controversy requirement is met, the court does not have subject-matter jurisdiction over the action because the diversity requirement is not. Answer choice D is incorrect because an insurer is treated as a citizen of the state in which its insured is a citizen. Here, the insured is treated as a citizen of the forum state because the insured is a lawful permanent resident of the United States who is domiciled in the forum state. Consequently, diversity jurisdiction does not exist between the plaintiff-truck driver and the defendant-insurer.

Question 71

In a valid contract, the plaintiff promised to pay the defendant $87,000 to fumigate the plaintiff’s commercial office building within seven days to stop a major insect infestation. The defendant performed the fumigation, and plaintiff paid the $87,000. Two months later, the plaintiff filed a complaint in the State A federal district court, making three main allegations. First, “Plaintiff is a State Z citizen, Defendant is a State A citizen, the amount in controversy is $87,000, and the court has diversity jurisdiction.” Second, “Defendant breached its contract with Plaintiff (copy attached) by failing to render adequate performance, and Plaintiff has been unable to sell his commercial office building.” Third, “Plaintiff demands judgment of $87,000, the amount Plaintiff lost as a result of Defendant’s breach.” What would be the defendant’s best response?

A. Filing a Rule 12(b) motion to dismiss for lack of subject matter jurisdiction.
B. Filing a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.
C. Filing an answer denying the plaintiff’s allegation that the defendant breached the contract.
D. Filing a motion for summary judgment on the grounds that there is no genuine issue of material fact and that the defendant is entitled to judgment as a matter of law.

Answer 71

Answer choice B is correct. The plaintiff has failed to allege facts sufficient to support a cognizable legal claim. Rather, the plaintiff has simply made the conclusory assertion that the defendant breached the contract by failing to perform adequately, without setting forth any facts explaining why the performance is inadequate under the contract. The fact that the plaintiff has been unable to sell his building is irrelevant, as this inability might reflect any number of factors unrelated to the quality of the building fumigation (such as a poor economy or an unreasonably high asking price). Answer choice A is incorrect because the facts alleged, if true, establish subject matter jurisdiction (diversity of citizenship). Answer choice C is incorrect because the defendant’s best response would be to obtain a motion to dismiss, rather than to answer the claim and become mired in a lawsuit (even though an answer would be a lawful option). Answer choice D is incorrect because a summary judgment motion would be appropriate only if matters outside the pleadings had been introduced.