Civ Pro - Wrong/Iffy Questions Flashcards
A citizen of State A filed a breach of contract action against a citizen of State B in a State A state trial court. The State B defendant timely and properly removed the action to the United States District Court for the District of State A. The defendant then filed a motion to dismiss the action based on insufficient service of process. Following a hearing, the court found that service was proper and denied the motion. The defendant then filed her answer, responding to the merits of the complaint and asserting that the case should be dismissed on the grounds that another action was pending between the same parties for the same cause in a State B state court. The State A Rules of Civil Procedure provide that a party waives the right to seek dismissal on that ground if the party files a pre-answer motion to dismiss and does not assert that ground in the motion.
Should the federal court hold that the defendant has waived the right to seek dismissal based on the pendency of the same cause in another court?
The defendant has not waived this defense. Unlike the state rule here, Federal Rule of Civil Procedure 12 does not require the defendant to raise the defense that another action is pending between the parties in the first responsive pleading. While the federal court exercising diversity of citizenship subject matter jurisdiction must apply state substantive law (here, State A law), applicable Federal Rules of Civil Procedure supersede state law in federal court as long as the rule comports with the requirements of the Rules Enabling Act (i.e., the rule governs practice and procedure and does not modify or abridge substantive rights).
What happens when two P’s bring claims arising from the same accident and one reaches the AIC but the other does not?
The P without AIC can still get the claim in federal court through Supp Jx. When the federal court has subject matter jurisdiction over one claim, it 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.
Important to note that at least one of the has to have their own basis, cannot aggregate claims from separate Ps against a single defendant unless they are seeking to enforce a joint right in which they have an undivided interest.
What happens when you basically have an issue of cross claim between Two Ds that are from the same state and no fed Q
May be able to invoke supplemental jurisdiction to have the cross claim heard in federal court. When the federal court has subject matter jurisdiction over one claim, it 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.
What must be shown for a TRO to be issued ex parte (without notice to other party)
As a general rule, notice of the hearing for the issuance of the order must be given before it is issued. However, a court may grant an ex parte temporary restraining order without notice of the hearing to the adverse party if the moving party does the following: (i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition; (ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and (iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained.
HAVE TO SHOW ALL THREE OF THESE. If not, no dice.
What happens if a D wants to bring a third party claim against someone fot contribution but the state law in the state where the action is brought does not allow contribution?
The D may not maintain the third-party claim. Third-party claims may be maintained only if the defendant/third-party plaintiff alleges that the third-party defendant is liable to the defendant/third-party plaintiff for all or part of the defendant/third-party plaintiff’s liability to the plaintiff. Here, the defendant/third-party plaintiff can make no such claim because state law does not recognize contribution among joint tortfeasors. In other words, the D may raise the Third Party’s negligence as a defense, alleging that the Third Party was the sole cause of the action, but he may not implead the Third Party based on joint contribution.
Are discussions between an expert and an attorney related to preparing the expert report and trial testimony discoverable?
The discussions are not subject to discovery. Draft reports and draft disclosures of “trial” experts are work product. Confidential communications between such experts and counsel for the party are also generally protected under the work product doctrine, except for communications relating to the expert’s compensation or to facts or data the attorney provided to the expert.
Can a clerk enter default judgment if the D has made some kind of appearance?
No, an appearance cuts off the clerk’s ability to enter a default judgment.
Have to have a hearing with a judge and bc they have appeared they are entitled to notice of that hearing.
What is the difference between “merger” and “bar” for claim preclusion
Although both merger and bar are used to indicate that claim preclusion (res judicata) is in effect, where the claimant won the earlier lawsuit, the claim is said to be merged into the prior judgment. Where the defendant won the earlier lawsuit, the claim is said to be barred by the prior judgment.
Is any type of reviee possible where a party failed to object to a jury instruction?
If the objection is not made (and therefore not preserved for full appellate review), then the court’s review is limited to considering whether there was a plain error in the instruction that affected substantial rights.
Normally, if the objection was made it would be an abuse of discretion standard
What happens to a state claim that is supped on to a Fed Qx claim of the Fed Qx claim is dimissed
Court has discretion to keep hearing it even after the Fed Qx is dimissed.
Usually, should dismiss if the Fed Qx claim is dropped before trial.
If dropped after trial has began, should probably just keep it for the sake of judicial economy.
