CIVIL PROCEDURE Flashcards
What happens after a second voluntary dismissal in litigation?
It acts as an adjudication on the merits, barring further refiling or reopening of the original matter.
What does issue preclusion prevent?
- It prevents relitigation of an issue that was fully litigated; and
- Necessarily decided in a prior proceeding that reached a judgment on the merits.
When can courts allow offensive use of issue preclusion?
Courts may allow it at their discretion if the party against whom the doctrine is invoked was a party to the prior trial.
📌 What are the requirements for filing an amended complaint under Federal Rule of Civil Procedure 15, and why was the customer’s amended complaint dismissed?
✅ Filing an Amended Complaint (FRCP 15):
A plaintiff can file an amended complaint within 21 days of serving the initial pleading without court approval or opposing party’s consent.
After that, the plaintiff needs leave of the court or written consent from the opposing party to amend the complaint.
✅ Why Was the Customer’s Complaint Dismissed?
The customer did not ask for leave of the court or obtain the corporation’s consent to file the amended complaint.
Because the customer did not follow proper procedure, the amended complaint was dismissed.
📌 Should the court grant the doctor’s motion for judgment as a matter of law 28 days after the jury verdict?
✔️ No, the court should not grant the doctor’s motion.
A renewed motion for judgment as a matter of law (formerly judgment notwithstanding the verdict) is made after the jury has reached a verdict.
Federal Rule of Civil Procedure 50(b) allows for such a motion only if the party first made a motion for judgment as a matter of law during the trial.
The doctor failed to make a motion during trial, and this was the first time he made the motion after the verdict, so the court cannot entertain the motion.
📌 What does the law of venue dictate?
✔️ The law of venue dictates the judicial district in which a suit can occur.
Venue addresses the region within a particular state where a suit may take place.
In federal court, this region is referred to as a judicial district.
Does the federal court have subject-matter jurisdiction when a foreign corporation sues a State A citizen for breach of contract with damages exceeding $75,000?
Yes, because the contractor is a State A citizen. Under 28 U.S.C. § 1332(a)(2), federal courts have diversity jurisdiction over disputes between a citizen of a U.S. state and a foreign citizen or corporation, provided the amount in controversy exceeds $75,000. The court generally accepts the plaintiff’s claimed amount unless it is legally certain the claim is for less. Since the claim could plausibly exceed $75,000, jurisdiction is proper.
Is an appeal proper when a judge dismisses one claim in a lawsuit, but other claims remain pending?
No, because this is not a final judgment that disposes of all issues as to all parties. Under the final judgment rule, appeals are generally only allowed after a case is fully resolved. Since the former employee’s other claims (harassment and retaliation) have not yet been litigated, the appeal is premature.
A tourist sued a tour company when the hike he was on resulted in serious injury due to poorly maintained trails. The lawsuit was filed in federal court and diversity jurisdiction was properly established. State law in this jurisdiction did not provide a right to a jury for any of the causes of action in the complaint. Federal law, however, did. The tourist requested a jury trial, which the court granted.
Was the court’s grant of the tourist’s request for a jury trial proper?
Yes, because there was federal law dealing with the issue.
In diversity cases, the right to a jury trial is determined by federal law, not state law. The Supreme Court has ruled that the right to a jury trial in federal courts is governed by the Seventh Amendment. Although state law may provide procedural rules, the constitutional guarantee of a jury trial must be applied uniformly in federal court, as stated in Simler v. Conner (1963). Therefore, even though state law does not provide a right to a jury, federal law guarantees the tourist’s request for a jury trial.
How should the appellate court rule regarding the admission of the copy of the contract and the award of damages?
The appellate court should reverse the judgment, because it would be unfair to admit the copy of the contract under these circumstances. According to Fed. R. Evid. 1003, a duplicate is admissible unless there is a genuine question about the original’s authenticity or admitting the duplicate would be unfair. Since the landowner is deceased and cannot challenge the authenticity of the original, it would be unfair to admit the duplicate. Therefore, the plaintiff should not be awarded damages based on this evidence.
Did the federal court properly transfer the action to State Z?
Yes, the federal court properly transferred the action to State Z. The lawsuit was filed in State Y, where the defendant was not a resident, and the cause of action did not arise there. However, the case could be transferred to State Z, where the defendant resides, under the applicable law, since State Z is the proper venue for the case.
May the author file an amended complaint after the court granted the movie company’s motion to dismiss?
No, the author may not file an amended complaint, because the court’s dismissal was likely with prejudice. Under Fed. R. Civ. P. 12(b)(6), when a complaint is dismissed for failure to state a claim, it is typically dismissed with prejudice unless the court specifically allows for an amendment. Since there is no indication the court granted leave to amend, the dismissal stands, and the author cannot refile the amended claim.
Is the individual’s removal of the defamation case to federal court proper, based on federal-question jurisdiction?
Yes, removal is proper because the issue is completely preempted by federal law. Although the employer’s claim is for defamation under state law, the central issue is whether the individual’s actions are protected by the National Labor Relations Act (NLRA), a federal statute. Since the NLRA governs collective action and labor union formation, the case is based on a federal question, making federal jurisdiction appropriate and the removal to federal court proper.
What is judicial notice, and when can it be applied under Federal Rule of Evidence 201(b)?
Judicial notice is a substitute for proof of facts by evidence. Under Federal Rule of Evidence 201(b), judicial notice can be applied to facts that are not generally known but can be verified by authoritative sources without reasonable dispute. In this case, judicial notice is allowable to establish that the master of ceremonies intended to convey that the reverend kept a mistress.
A popular restaurant chain had restaurants in over 20 states. The restaurant chain was a State A corporation with its
principal place of business in State B. The restaurant chain was sued in a class action lawsuit on behalf of 4,000 employees
who alleged that the restaurant chain illegally required the employees to work overtime without compensation over a three-year
period. The named plaintiffs representing the class in the action were a manager with claimed damages of $11,000 who was a
citizen of State C, a waiter with claimed damages of $14,000 who was a citizen of state D, and a bartender with claimed
damages of $17,000 who was a citizen of State F. However, no class member has damages of less than $2,000.
Which of the following is true?
The correct answer is:The federal court has subject-matter jurisdiction, because the aggregate claims of the class as a
whole exceed $5,000,000.
Discussion of correct answer:The Class Action Fairness Act (CAFA) expands federal subject-matter jurisdiction to include
class action lawsuits where: (1) the class has at least 100 members; (2) at least one member of the class is diverse from at
least one defendant; and (3) the total amount in controversy exceeds $5 million. Because this class has more than 4,000
members, has at least one member diverse from the defendant, and the total amount in controversy exceeds $5 million, the
court will have subject-matter jurisdiction.
A large restaurant chain engaged in a policy of taking a larger percentage of their waitstaff’s tips than is permitted by law. A
waitress sued the corporation that owned the large restaurant chain in an appropriate U.S. District Court for a federal labor law
violation as representative of the class of persons who had been harmed by this illegal policy. The class was certified under
FRCP 23(b)(3). The following notice was prepared for mailing to all class members (approximately 13,000 persons): “You are
hereby notified that a class action has been brought in U.S. District Court under Rule 23(b)(3) of the Federal Rules of Civil
Procedure by Miss. Wendy Waitress on behalf of all persons who have been harmed by this illegal policy of taking too high a
percentage of the waitstaff’s tips by the corporation that owns the large restaurant chain. You may opt out of the class within
one month of this notice. If you choose to remain in the action, you may appear through an attorney.”
Which of the following statements is correct?
The correct answer is:The notice to class members is not adequate.
Discussion of correct answer:Under Federal Rule of Civil Procedure 23(b)(3), a class action notice must advise the recipient:
that the court will exclude any member of the class who requests exclusion; that the judgment, whether or not favorable, will
be binding on all class members who do not request exclusion; and that any member who does not seek exclusion may
enter an appearance. Here, the notice did not satisfy these requirements, and the notice is therefore inadequate.
A buyer from State A sued a seller from State B in federal court for breach of contract. The federal court had subject-matter
jurisdiction based on diversity. The contract at issue had a choice-of-law provision stating that the law of State X was to be
applied to any litigation. However, the lawsuit was filed in State C, which had a prohibition on applying contractual choice-of-law
clauses from a jurisdiction not substantially related to the claims before the court. State X was not substantially related to the
claims before the court.
Which state’s law should the court apply regarding the choice-of-law clause?
Discussion of correct answer:The Erie doctrine states that a federal court that hears a state law claim in a case based on
diversity or supplemental jurisdiction must apply the substantive law of the state in which the court sits [Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938)]. However, federal courts in a diversity action will apply the choice-of-law rules of the state in
which the court is located. Here, the court is located in State C, which had a prohibition on choice-of-law clauses from
jurisdictions not substantially related to the claims before the court. Thus, the facts tell us that the choice-of-law clause is
prohibited here, and this is the correct answer choice.
The nation’s leading car manufacturer became aware of a design flaw which caused their most popular car’s frame to completely
crumble when struck in the back passenger side door panel. Even knowing that the car had a design flaw, the manufacturer continued
to produce the car without changing the design because the manufacturer believed that it would be cheaper to pay settlements to
injured parties than to recall all of the cars which had already been sold and revamp the processing factories. One victim filed suit
against the manufacturer when the car crumbled causing the death of her twin teenage sons who had been riding in the backseat.
Prior to trial, the manufacturer made a settlement offer which was rejected. At trial, the victim presented evidence of the settlement
offer.
Which of the following would be a proper purpose for the introduction of the settlement offer made by the manufacturer to the victim?
To establish an effort by the manufacturer to obstruct a potential criminal investigation.
Discussion of correct answer:While evidence of an offer to settle a claim is generally inadmissible in court, admission of such
evidence may be permitted for the limited purposes of proving a witness’s bias or prejudice, for negating a contention of an undue
delay, and for proving that an effort exists to obstruct a criminal investigation or prosecution.
Six years ago a contractor installed a heating system into a building. Recently the heating system malfunctioned and the pipes
burst in the building causing $80,000 worth of damage. The owner of the building filed suit in the appropriate U.S. District Court. The
contractor timely filed an answer denying negligence and asserting the statute of limitations as an affirmative defense. A former
employee of the contractor, who worked for the contractor at the time of the installation, provided the building owner with an affidavit
stating that the contractor knew that the model of the heating system that was installed had significant disadvantages compared to
other models the contractor could have used. The building owner filed a timely motion for summary judgment relying on the former
employee’s affidavit. The court denied the owner’s motion.
Why was the denial of the motion for summary judgment proper?
The former employee’s affidavit did not address the contractor’s affirmative defense, and genuine issues of
fact remain as to the negligence of the contractor based upon the former employee’s affidavit.
Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to a summary judgment where as a
consequence of there being “no genuine dispute as to any material fact,” the party is entitled to judgment as a matter of law. Here,
even if the facts in the former employee’s affidavit are accepted as true, genuine issues of material fact remain as to whether the
contractor was negligent. In addition, the affirmative defense was not addressed. For these reasons, it was proper for the court to
deny the motion for summary judgment.
A driver, who was a State C citizen, was injured when the brakes of his car did not work while he was driving. The brakes were
manufactured by an auto parts manufacturer which was a State A corporation with its principal place of business and headquarters
located in State B. The driver brought a cause of action against the auto parts manufacturer in federal District Court in State B. Service
of process was sent to the residence of the president of the auto parts manufacturer. Service was accepted by the president’s 19-yearold
son. The son forgot to leave his father the papers and the president of the auto parts manufacturer did not learn of the lawsuit until
one month later. The auto parts manufacturer’s first motion was under Rule 12(b)(5) for insufficient service of process. The court ruled
that the auto parts manufacturer waived its right to complain about service of process.
Was the court’s action proper?
No, because service of process must be made to an officer or agent of the corporation.
Discussion of correct answer:Federal Rule of Civil Procedure 4 requires that service of process on a corporation be accomplished
by delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process. There is no reason to believe that the son was an agent by appointment or
law, and as such, service was ineffective. Certain defenses are deemed waived if there is a failure to raise an objection in an
answer or pre-answer motion to dismiss. However, here, service was never achieved, and the auto parts manufacturer did not have
actual notice of the claim. Because service was not proper it does not matter that the 21-day period to file an answer had passed.
Thus, the auto parts manufacturer cannot be deemed to have waived its challenge to service of process.
A State A woman purchased a lamp at a local department store which later overheated and set fire to her home. She sued both
the department store and the manufacturer of the lamp, both of whom were considered to be citizens of State B, in State A state court,
asserting State A tort claims and alleging $400,000 in damages. A week later, the woman amended her complaint and added another
defendant: a State A consumer product reviewer who had written an article giving the lamp a stellar review and which had persuaded
the woman to buy the lamp. The woman alleged that the reviewer had “negligently advised” her to buy the lamp in violation of State A
law. The department store and manufacturer then removed the action to federal court.
Which of the following facts, if true, would most support removal of the action?
is:State A courts have specifically ruled that there is no cause of action for negligent advisement.
Discussion of correct answer:A case cannot be removed to federal court based on diversity jurisdiction unless there is complete
diversity between the parties. Under the fraudulent joinder rule, however, the right to removal will not be defeated if a defendant
was fraudulently joined for the purpose of defeating jurisdiction. A party who claims fraudulent joinder has the burden of proving: 1)
that there is no possibility the plaintiff would be able to establish a cause of action in state court against the in-state defendant; or 2)
that there was outright fraud in the plaintiff’s pleading of jurisdictional facts. If State A courts have specifically ruled that there is no
cause of action for negligent advisement, then there is no possibility the woman will be able to establish a cause of action against
the State A reviewer.
A teenager was out riding his motorcycle. He was wearing dark clothes and visibility was poor that night. A man was driving his car
and crashed into the motorcycle causing an accident. Soon after another car driven by a woman hit the first car from behind and
caused the first car to further damage the motorcycle. The teenager brought an action against the man in the U.S. District Court in the
state in which the teenager was domiciled. The teenager sought to recover $76,000 for damages to his motorcycle. The man filed a
counterclaim against the teenager, seeking $1,213 for damages to his car. The man also filed two claims against the woman, one
seeking $76,000 in the event that the man was liable to the teenager, and the other seeking $1,213 for the damages caused to his car.
The teenager and the man were both citizens of State X; the woman was a citizen of State Y. Judgment was entered for the teenager
against the man, but all of the other claims were found to be without merit. The woman filed a lawsuit against the teenager and the
man in the U.S. District Court in State X seeking $100,000 for personal injuries suffered in the earlier auto accident. The teenager and
the man have each counterclaimed seeking $100,000 for their own personal injuries and have filed similar cross-claims against each
other.
Which of the following statements is correct?
The correct answer is:All of the above
In an impleader action, the third-party defendant (the impleaded party) may assert any claim againstthe plaintiff that arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-partyplaintiff (the impleading party). The U.S. District Court did not have subject-matter jurisdiction in the initial action, because theteenager and the man were citizens of the same state (State X) and no federal claim appears to have been involved. Apart fromany possible subject-matter jurisdiction problems in the prior suit, the woman could have filed any claim arising out of the accidentthat she had against the teenager in that initial lawsuit because it conforms to the operative rule of law found in Rule 14. Finally,under res judicata principles, the teenager could not split his claim against the man (i.e., the teenager was required to bring allcauses of action arising out of the accident against the man in the original lawsuit), and the man was required to file a counterclaimagainst the teenager in the original lawsuit with respect to any claims arising out of the accident or thereafter be barred. It shouldbe mentioned that even though the teenager and the man are citizens of the same state, supplemental subject-matter jurisdictionwould have permitted the man to counterclaim against the teenager.
All of the following are considered when the court conducts an Erie analysis except which of
following?
If there is a valid state statute on point.
Discussion of correct answer:Whether a valid state statute is on point is not considered in the Erie analysis. Step 1 of the Erie
analysis directs a court to consider whether there is a valid federal statute or constitutional provision on point If so, the federal court must apply the relevant provision. Whether a valid state statute is on point is not a consideration in the Erie analysis.
A prescription medication was cleared by the federal Food and Drug Administration (FDA) and had been on the market for several
years before it was discovered the drug caused men to become permanently sterile. The men affected by the drug filed a class action
against the FDA, arguing that it failed to provide proper oversight and testing of the drug before releasing it for consumer use. The
federal court hearing the case ruled pre-trial that the agency had immunity based on federal common law, as Congress had never
addressed the issue.
Did the federal court err in finding that the agency had immunity?
is:No, because the lawsuit pertained to commercial liability of the federal government.
Discussion of correct answer:Federal courts may make federal common law when [Clearfield Trust Co. v. U.S., 318 U.S. 360
(1943)]: (1) federal or constitutional interests are at stake; (2) Congress had inadequately addressed the situation concerned; and
(3) the application of individual state laws in various jurisdictions would create unacceptable levels of diversity or uncertainty.
Generally, federal common law is confined to the following fields of law: (a) maritime law; (b) foreign relations; (c) commercial rights
and liabilities of the federal government; and (d) property rights and liabilities of the federal government. In this case, the issue of
liability of the federal government as to drugs cleared for commercial use is squarely within the generally established areas of law
for which federal common law is created by the courts. Moreover, the facts indicate that Congress had not addressed this topic,
which permits the federal court to do so. Therefore, this is the correct answer choice.
A corporation sued a man in federal district court for breach of contract based on the man failing to correctly fix a heating system
in a factory that the corporation owned. The man, a State A citizen, met with his attorney. The man said that the federal court did not
have jurisdiction over the matter because the corporation did not have any factual basis to claim more than $75,000 in damages. The
man also said that the corporation had all of its factories in State A and was thus a State A citizen. The man further stated that the
corporation was incorporated in State C and had an office in State B where the corporation’s directors were based. Based solely on
the man’s statements, the attorney filed a motion to dismiss.
Should the court grant the motion?
The correct answer is:No, because the attorney based the motion on the man’s statements.
Discussion of correct answer:Before filing a motion, attorneys must investigate the factual and legal bases for that motion [Fed. R.
Civ. P. 11]. Consequently, the attorney cannot merely base the motion off the man’s word without some sort of reasonable inquiry.
A lawyer filed a class action against a company in state court alleging that the company produced a sleep aid that caused a
percentage of its users to suffer an allergic reaction. It was clear from the face of the complaint that the named plaintiff was not of
diverse citizenship from the company, although some members of the class were. It was also clear that no member of the class had a
claim in excess of $75,000 against the company. The class had at least 10,000 members, each of whom had a claim for $600. The
company removed the case to federal court, and the lawyer filed a timely motion to remand.
Should the court grant the motion to remand?
The correct answer is:No, because at least one member of the class is of diverse citizenship from the defendant, the class has
more than 100 members, and the class in the aggregate seeks more than $5,000,000 in damages.
Discussion of correct answer:The issue is whether the case could have been brought originally in federal court. The Class Action
Fairness Act (CAFA) creates special rules on subject-matter jurisdiction for class actions. As long as the class has more than 100
members, there is in the aggregate more than $5,000,000 in controversy, and one member of the class is diverse from one
defendant, then the case could have been brought originally in federal court under CAFA and is therefore removable by the
company
The plaintiff was a citizen of State C and filed a case against the defendant in state court in State A. The defendant was a
corporation that was incorporated in State B and had its principal place of business in State A. The complaint alleged that the
defendant harmed the plaintiff in two unrelated transactions and that the plaintiff was harmed in each transaction in the amount of
$50,000. The claims were both based upon state law. The defendant removed the case to federal court in order to assert a defense
under federal law.
Was the removal to federal court proper?
The correct answer is:No, because the defendant had its principal place of business in State A.
Discussion of correct answer:The general rule under 28 U.S.C. Section 1441(a) is that a defendant may remove a case filed in
state court to federal court if the case could have been brought originally in federal court. This case could have been brought
originally in federal court because the plaintiff is a citizen of State C and the defendant is a citizen of States A and B, and the
amount in controversy exceeds $75,000. The plaintiff may add together all of the plaintiff’s claims, even two unrelated claims, to get
over the amount in controversy threshold. However, there is an exception to the right of removal that applies here. A defendant who
is a citizen of the state where the case is brought originally may not remove a case, even if the case could have been brought
originally in federal court, if the case if founded solely on diversity (as it is here) and the defendant is a citizen of the state where the
case is brought. Here, the defendant is a citizen of State A because it has its principal place of business there, under 28 U.S.C.
Section 1332(c)(1). Therefore, under 28 U.S.C. Section 1441(b), the defendant may not remove the case to federal court
**The amount in controversy was $100,000. The plaintiff
was permitted to add together, or aggregate, all of the plaintiff’s claims in order to meet the amount-in-controversy requirement,
even though the claims were unrelated to each other. The total of the two claims, $100,000, exceeds the minimum jurisdictional
requirement of $75,000.*****
A graphic designer created a specialized font to sell to companies. A big box store bought the rights to use the font, which was so
popular in advertisements that the big box store sold the intellectual property behind the font to a competitor for a lot of money. The
terms and conditions to purchasing the rights to the font from the graphic designer did not prohibit resale or limit profitability from use
of the font. The graphic designer nonetheless sued the big box store, who attempted to print the terms and conditions off the graphic
designer’s font webpage and admit it as evidence. The terms and conditions had not changed since the big box store purchased the
rights to the font. The graphic designer objected, stating that the printed copy of the terms and conditions were not an original writing.
The trial judge agreed and disallowed the terms and conditions to be admitted into evidence. The big box store timely appealed.
How should the appellate court rule on the trial judge’s refusal to admit the terms and conditions?
The correct answer is:The appellate court should reverse the trial court, because the terms and conditions are an original.
Discussion of correct answer:An original writing, recording, or photograph is required in order to prove its content unless the
Federal Rules of Evidence or a federal statute provides otherwise [Fed. R. Evid. 1002]. This is called the best evidence rule. For
electronically stored information, an “original” means any printout, or other output readable by sight, if it accurately reflects the
information. Here, the terms and conditions are found on the graphic designer’s website, so they are electronically stored
information. When the big box store printed off the terms and conditions prior to trial, it created an original. Because the best
evidence rule has been satisfied, this is the correct answer
LLC, a limited liability company incorporated and doing business in State A, sued CO, a company incorporated and doing business in State B, in federal district court for $150,000 in damages to LLC’s products as a result of faulty snow-making equipment. LLC served the summons and complaint on CO. In its complaint, LLC enumerated each product that was damaged, how it was damaged, and when. In its answer, CO denied each allegation. After engaging in discovery practice, including taking two depositions and reviewing several documents, CO filed a motion for summary judgment. LLC filed its response, pointing to all of the specific information delineated in its complaint.
Will the federal district court grant CO’s motion for summary judgment?
The correct answer is:Yes, because LLC cannot rely on allegations in the complaint, even if the damages were specifically delineated therein.
Discussion of correct answer:In a motion for summary judgment, the parties cannot rely solely on the pleadings and expect to prevail. Particularly when a defendant brings a motion for summary judgment against a plaintiff, it is important to note that the plaintiff’s pleading–the complaint–contains mere allegations. No matter how specific the allegations, they are simply that, and do not constitute proof of what they allege. Therefore, the plaintiff cannot rely on those mere allegations to defeat a motion for summary judgment.
A stockbroker and a trucker were involved in a vicious fight in a bar in State A and the stockbroker received serious injuries. The stockbroker was a citizen of State X, and the trucker was a citizen of State B. The trucker owned land in State X. State X has adopted a service of process statute identical to that found in the Federal Rules of Civil Procedure. The stockbroker sued the trucker in a State X court of general jurisdiction. The stockbroker served the trucker by sending the summons and complaint via first-class mail to the trucker in State B. The trucker received these documents but failed to respond to them. The stockbroker then obtained a default judgment.
If the stockbroker sought to enforce the judgment in a State B court, what should happen?
The correct answer is:The trucker may collaterally attack the judgment for insufficient service of process.
Discussion of correct answer:Default judgments that are constitutionally or procedurally defective are subject to collateral attack. Federal Rule of Civil Procedure 4 (which has been adopted in State X) provides that service must be made: (1) pursuant to state law; (2) by personal service; (3) by leaving a copy at the defendant’s dwelling with someone of suitable age and discretion who resides there; or (4) by delivering a copy to an agent authorized to receive service of process. The stockbroker could not serve process by first-class mail. The stockbroker could have mailed a request for waiver of service of process by first-class mail, but he did not do so. Thus, he was required to fulfill ordinary service of process. Because the State X judgment was procedurally defective (i.e., the stockbroker failed to conform with the applicable service of process statute), it was subject to collateral attack.
