Civil Procedure

Question 1

Who can remove?

Answer 1

ONLY DEFENDANTS!!!

Question 2

A customer who was seriously injured in an accident on a retailer’s premises filed a complaint in a federal district court in State A. The complaint alleged in good faith that the customer was entitled to damages in excess of the amount-in-controversy requirement. At the time of the accident, which took place in State C, the customer and the retailer were citizens of State C. Prior to filing suit, the customer changed her domicile to State A for the sole purpose of being able to bring this action in federal court. After filing an answer, the retailer filed a motion to dismiss the action for lack of subject-matter jurisdiction.

Should the court grant this motion?

Answer 2

No, because the customer and retailer were citizens of different states when the customer commenced the action.

Subject-matter jurisdiction based on diversity of citizenship exists with respect to this action. At the time of the filing of the complaint, the plaintiff was a citizen of a different state (i.e., State A) than the defendant (i.e., State C) and the amount-in-controversy requirement was met.

Question 3

A supplier, incorporated in State A and headquartered in State B, sold bicycle parts from its warehouse in State B. A bicycle manufacturer, incorporated and headquartered in State B, sold bicycles containing parts bought from the supplier, to buyers located all over the United States, with several retail locations in State A. An individual buyer, a resident of nearby State C, purchased a bicycle from one of the manufacturer’s State A retail locations. While riding the bicycle, the buyer was seriously injured. The buyer filed suit against the supplier and the manufacturer in federal district court in State A under diversity jurisdiction, alleging that the supplier’s parts and the manufacturer’s bicycle were defective. The law of State A provides that its courts can exercise jurisdiction to the extent permitted under the Due Process Clause.

Which of the following statements is accurate regarding the federal district court’s jurisdiction?

Answer 3

The court has personal jurisdiction over the supplier and the manufacturer.

In general, a federal district court determines personal jurisdiction as if it were a court of the state in which it is situated. Any action may be brought against a corporation that is incorporated in the forum state (a resident corporation). Here, the supplier is incorporated in State A. Further, in a state with a long-arm statute conferring jurisdiction to the extent permissible under the Due Process Clause, the court must only determine whether the exercise of jurisdiction comports with due process. Because the manufacturer had retail locations in State A and the plaintiff actually purchased his bicycle from one of these retail locations, State A’s exercise of jurisdiction over the manufacturer would not be unconstitutional. Accordingly, the federal district court in State A has personal jurisdiction over both defendants.

Question 4

A sports fan filed a state court action, based on an alleged assault and battery at a sporting event, against a private security officer and his employer.

The forum state has multiple federal judicial districts. On the basis of diversity jurisdiction, the defendants removed the action from state court to the federal district court for the district in which the state court was located. The fan is domiciled in the forum state, but neither the fan’s residence nor the sporting venue is located in the district in which the federal court is located. The officer is domiciled in a neighboring state and the firm, which is incorporated and has its principal place of business in a third state, regularly does business in the forum state. On the basis of improper venue, the fan has challenged the removal of this action from state court to federal court.

How should the federal court rule on this challenge?

Answer 4

Deny the challenge, because the state court was located within the district of the federal district court at issue.

Under Section 1441(a) of the removal statute, an action may be removed to the federal court in the district where the state action is pending. That removal statute determines venue, regardless of whether venue would have been proper under the venue statute (Section 1391) if plaintiff had originally brought the action in that federal district court.

Question 5

Two business partners, who were citizens of neighboring states, entered into an agreement in which one partner would pay 70% of the initial startup costs of a new solar energy business, while the other would pay 30% and repay 20% to the other partner after two years. The parties signed a promissory note outlining this agreement. After the terms outlined in the agreement had passed, the debtor-partner had not paid anything to the creditor-partner, so the creditor-partner appropriately filed suit in federal district court based on diversity jurisdiction. The forum state’s partnership statute contained substantive and procedural provisions that varied somewhat from a federal statute that regulated certain lending in the solar energy industry, though the existence of an actual conflict was dependent upon the facts of the matter.

How should the court proceed?

Answer 5

Evaluate the facts to determine whether a conflict exists.

When the court is faced with a substantive or procedural question for the purpose of applying the Erie doctrine, the district court should determine whether there is a conflict between state and federal law with respect to the issue before the court. If there is no conflict between state and federal law, then the analysis does not need to proceed any further because the court can apply both state and federal law. Here, it is unclear whether there is a conflict, so the court must determine whether there is, in fact, a conflict before proceeding with applying either law.

Question 6

A plaintiff filed a complaint in federal district court based on diversity jurisdiction. The defendant operated a car repair business as a sole proprietorship. The complaint alleged that, due to the defendant’s negligence in repairing the plaintiff’s car, the plaintiff was involved in an accident and suffered over $100,000 in damages. The plaintiff’s lawyer served the complaint and summons on the manager of the business at the defendant’s car repair garage. Unlike the federal rules, the procedural rules of the forum state permit service of process at the defendant’s regular place of business on a person of suitable age and discretion. The defendant timely filed a motion to dismiss based on insufficient service of process. The court denied this motion.

Was the court’s denial of the defendant’s motion proper?

Answer 6

Yes, because the law of the forum state permits service of process at the defendant’s place of business.

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 7

Pursuant to a federal statute, a taxpayer filed a complaint in federal district court against the United States for civil damages. The claim arose from an IRS employee’s alleged reckless and intentional disregard of the U.S. Tax Code and related regulations in attempting to collect federal taxes from the taxpayer. The complaint and summons were personally delivered by a 25-year-old relative of the taxpayer to the U.S. attorney for the district in which the action has been filed. The U.S. attorney has challenged the service of process as insufficient.

Should the court find that the service was insufficient?

Answer 7

Yes, because process was not also served on the U.S. Attorney General.

When the United States is a defendant in a civil action, service must be made on the U.S. Attorney General as well as the U.S. attorney for the district in which the action has been filed. A party must send a copy of the summons and complaint by registered or certified mail to the U.S. Attorney General. In this case, although the taxpayer’s relative properly served the U.S. attorney, the relative failed to mail a copy of the summons and complaint to the U.S. Attorney General by registered or certified mail. Therefore, service of process was insufficient.

Question 8

A plaintiff filed a complaint against his former employer in federal court, alleging that the plaintiff had been terminated based on his race in violation of federal law. The complaint included a short and plain statement of the plaintiff’s claim and the facts upon which it was based, but not detailed factual allegations. Ten days after the complaint was filed, the defendant filed an answer. The following day, the defendant filed a motion to dismiss the complaint, asserting that the plaintiff had failed to state a claim upon which relief could be granted. The defendant attached to the motion an affidavit from the plaintiff’s former supervisor stating that the plaintiff was terminated based upon his performance and described an incident in which the plaintiff made a mistake that caused the employer to lose an important customer. The court granted the motion to dismiss, noting that the facts described in the affidavit undermined the plaintiff’s claims.

Was the court’s ruling granting the motion to dismiss proper?

Answer 8

No, because the court considered matters outside the pleadings.

The court can grant a motion to dismiss under 12(b)(6) if the claim fails to assert a valid legal theory of recovery or fails to allege facts sufficient to support a cognizable claim. However, if the court considers new evidence in its review of a motion to dismiss, as it did with the affidavit here, it should treat the motion as a motion for summary judgment rather than a motion to dismiss. Here, the court was in error because it did not treat the motion as a motion for summary judgment despite considering new evidence.

Question 9

A shareholder of a corporation properly filed a derivative action in federal district court on behalf of the corporation against the directors of the corporation based on breach of their statutory duty. Prior to filing an answer to the complaint, the defendants filed a motion to dismiss the action for failure to state a claim upon which relief can be granted. Accompanying the motion was a certified copy of the corporation’s shareholder records, which indicated that the plaintiff was not a shareholder of the corporation at the time that the alleged wrong occurred—a requirement for bringing a derivative action. The copy of the records did, however, indicate that the plaintiff’s mother was a shareholder at the time the alleged wrong occurred. The plaintiff, in opposing the motion, attached a copy of his mother’s probated will, which devised her shares in the corporation to him—an exception to the prior rule. The court, treating the motion as a summary judgment motion, denied the motion after considering the documents submitted by each party.

Was the court’s treatment of this motion proper?

Answer 9

Yes, because the court considered materials outside the pleadings in reaching its decision.

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. Here, the court considered the shareholder records and the probated will which are both materials outside the pleadings. Therefore, the court properly treated the motion as a motion for summary judgment.

Question 10

A plaintiff was involved in a serious car accident with a defendant. The plaintiff sustained damages to her vehicle and significant personal injuries. Two months after the accident, the plaintiff filed a complaint against the defendant in federal district court with subject matter jurisdiction, alleging that the defendant’s negligent conduct in failing to stop at a stop sign caused the plaintiff’s damages. Twenty days after the defendant served his answer specifically denying the plaintiff’s allegations as to the defendant’s negligence, the plaintiff moved for summary judgment on the issue of liability. In support of her motion, the plaintiff submitted an affidavit from an eyewitness, stating that he saw the defendant drive through a stop sign immediately before striking the plaintiff’s car. This affidavit would be inadmissible at trial as hearsay. The defendant responded to the plaintiff’s motion by repeating the denials in his answer.

Can the court grant the plaintiff’s motion?

Answer 10

Yes, because there is not a genuine dispute as to the facts.

If a motion for summary judgment is properly made and supported, an opposing party may not rely merely on the allegations or denials in her own pleading. The opposing party must set out specific facts showing a genuine dispute for trial. If the opposing party does not so respond, then summary judgment, if appropriate, will be entered against that party. In this case, the plaintiff properly supported her motion for summary judgment with affidavits from a witness and an additional document. Thus, the defendant could not rely merely on the denials in his answer. He should have provided other evidence, such as affidavits, to support his opposition to the motion. Because he did not do so, the court can grant summary judgment for the plaintiff.

Question 11

In a civil action brought in federal district court, the judge conducted voir dire of the prospective jurors. The judge refused to permit either attorney to directly question the prospective jurors. The judge did permit the attorney for each party to submit questions for her to ask the prospective jurors, but refused to ask particular questions that she found to be improper.

Has the judge conducted voir dire in accordance with the federal rules?

Answer 11

Yes, because the judge gave each party’s attorney the opportunity to submit questions to be asked of the prospective jurors.

If the court examines the prospective jurors, then it must permit the parties or their attorneys to make any further inquiry it considers proper, or it must itself ask any of their additional questions that it considers proper. Here, the judge conducted the voir dire of the prospective jurors. The judge properly permitted each party’s attorney to submit questions to be asked of the prospective jurors and asked the jurors the questions she deemed to be proper. Therefore, the judge conducted voir dire in accordance with the federal rules.

Question 12

In a negligence action properly before a federal district court sitting in diversity, the court submitted the case to the jury. The jury’s decision, which took the form of a written special verdict, was read aloud by the court clerk in open court. The verdict stated that both parties were negligent and that both parties’ negligence proximately caused the plaintiff’s injuries. The verdict also stated that the plaintiff had suffered damages of $1 million and was 10% at fault for his injuries. The court then asked the jury collectively if this was their verdict and they responded in unison, “Yes.” The defendant requested that the jury be polled. When questioned individually, a juror tearfully stated that the verdict was not her verdict because she did not believe that the defendant had been negligent. Upon further questioning, she maintained this position. The other seven jurors affirmed the verdict. The defendant moved for a new trial.

Is the court likely to grant the defendant’s motion?

Answer 12

Yes, because one juror did not affirm the special verdict as hers.

Under the federal rules, the verdict of a civil jury must be unanimous unless the parties otherwise agree. Here, one juror, when questioned individually, denied that the special verdict was her verdict. Consequently, the court may order a new trial.

Question 13

A jury found for the plaintiff in a defamation action in federal district court against a newspaper publisher. Following the verdict, the newspaper publisher moved for a new trial on the grounds that the verdict was against the weight of the evidence. The court granted the motion. The plaintiff wants to immediately appeal the court’s order granting the new trial.

Which of the following is most accurate concerning immediate appeal of the court’s order?

Answer 13

Immediate appeal is precluded by the final judgment rule.

An order for a new trial is not appealable because it is not a final judgment. A party who wants to raise on appeal the grant of a new trial must wait until the new trial has occurred and resulted in a final judgment. The party may then appeal from that judgment and raise as an issue the order for the new trial.

Question 14

A driver of a car hit a pedestrian crossing a street in the middle of a city block. The pedestrian properly filed a suit against the driver in federal district court based on negligence for personal injuries. The driver contended that the pedestrian was also negligent. The forum state has a traditional contributory negligence statute. The general verdict of the jury was in favor of the driver.

The pedestrian then filed a suit in federal district court to recover for his personal injuries from the passenger in the driver’s car at the time of the accident. The pedestrian alleged that the accident occurred because the passenger distracted the driver just before the accident.

Can the passenger successfully assert that the pedestrian should be precluded by the prior decision from re-litigating the issue of his contributory negligence with regard to the accident?

Answer 14

No, because it is not known whether the issue was essential to the judgment.

Issue preclusion (collateral estoppel) does not apply. Generally, an issue that constitutes a necessary component of the decision reached will be considered essential to the judgment. While the issue of the pedestrian’s contributory negligence was actually litigated in the Pedestrian v. Driver lawsuit, it is unclear what role this issue had in the jury’s decision. If the jury decided that the driver was negligent, then the jury must have also found that the pedestrian was contributorily negligent in order to arrive at its verdict in favor of the driver. However, the jury may have decided that the driver was not negligent, in which case any decision made by the jury regarding the pedestrian’s contributory negligence was not essential to the judgment. Consequently, because it cannot be established that the jury made a decision on this issue or if the jury did, that it was essential to the judgment, the pedestrian can re-litigate the issue of his contributory negligence in the current action.

Question 15

A traffic accident victim initiated a diversity action for damages stemming from an accident against a truck driver and the corporation who had hired him as an independent contractor for a one-time delivery, to fill in for their own truck driver, who had fallen ill. The victim filed the complaint, which was based on negligence with regard to the truck driver and respondeat superior with respect to the corporation, in the federal district court for State A, the state in which the accident occurred. The truck driver was transporting equipment from State B, the state of incorporation and principal place of business of the corporation, to State C, where the corporation was opening a new plant. The corporation had no business dealings in State A. The victim is a citizen of State D. The forum state has a long-arm statute that permits a state court to exercise personal jurisdiction to the extent permitted by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.

What is the corporation’s best argument that the court lacks personal jurisdiction over it?

Answer 15

Answers:

A: You Selected: The minimum contacts test cannot not be satisfied due to the corporation’s lack of business dealings in State A.
B: The victim is not a citizen of State A.
C: The corporation had not purposefully availed itself of the benefits and laws of State A.
D: Correct Answer: The truck driver was an independent contractor, rather than an employee of the corporation.

In order for a defendant to be subject to the jurisdiction of a court, the defendant must have sufficient minimum contacts with the forum state. While a single contact can be sufficient if the cause of action is based on that contact, an out-of-state corporation is not subject to personal jurisdiction solely because of contacts in the state by an independent contractor. Contacts by a nonresident employer’s agents or employees, on the other hand, are generally imputed to the employer when the agent or employee is acting within the scope of the agency or employment. In this case, the truck driver was acting within the scope of his employment by transporting the equipment through State A when the accident occurred. However, if the corporation can establish that the truck driver was an independent contractor rather than an employee, then the court will not have general jurisdiction over the corporation due to the corporation’s lack of business dealings in State A and would not have specific jurisdiction over the corporation with respect to the accident.

Question 16

A plaintiff initiated a negligence suit in federal district court against a defendant based on an automobile accident. The accident occurred as the defendant, tired from a long trip, was driving through a state to reach his home in a neighboring state. The forum court, in a state with two federal districts, was located in the eastern district. The accident occurred in the western district of this state. The defendant, who is a citizen of a foreign country but is also a lawful, permanent resident of the United States, filed a timely motion to dismiss the action for lack of subject-matter jurisdiction. The court properly rejected the motion. In his answer, the defendant raised the defense of improper venue.

The plaintiff contemplates making the following replies; which correctly reflects the law?

Answer 16

Answers:

A: Venue is proper because an alien may be sued in any judicial district.
B: You Selected: Venue is proper because the accident occurred in the forum state.
C: Because the court has ruled that it has subject-matter jurisdiction over the suit, venue is also proper.
D: Correct Answer: The defendant waived this defense by failing to assert it in his motion to dismiss.

An objection to venue is waived by a defendant if not asserted in a pre-answer motion to dismiss if the defendant chooses to file one. Here, because the defendant failed to assert this objection in his motion to dismiss, he has waived his objection to the improper venue.

Question 17

A jeweler who is a citizen and resident of a foreign country brought some jewels into the United States to sell at a convention. A buyer purchased the jewels from the jeweler, whom he had not previously met, but whom he knew by reputation to be an honest businessperson. Subsequently, the buyer discovered that the jeweler had misrepresented the quality of the jewels. The buyer has filed an action in the federal court for the district in which he resides against the jeweler based on a state law claim of misrepresentation. The convention had been held in another state. The jeweler has timely filed a motion to dismiss this action based on lack of subject matter and personal jurisdiction, as well as improper venue. The court properly determined that it has subject matter and personal jurisdiction.

Should the court grant the motion as it relates to improper venue?

Answer 17

No, because a nonresident of the United States may be sued in any judicial district.

A defendant who is not a resident of the United States may be sued in any judicial district. Because the jeweler is a resident of a foreign country, the jeweler may be sued in the federal district court for the district in which the buyer resides.

Question 18

A businessman was forced to file for bankruptcy in federal court after a stock portfolio manager he hired negligently lost the businessman’s fortune. In the state where the businessman resided, a specific state statute governed all relationships and obligations between debtors and creditors. The state statute contained provisions that regulated how a debtor would discharge debts in the event of a default. Many of the statute’s provisions conflicted with federal bankruptcy laws because they afforded different procedures and prescriptive periods than those required for discharging debts in bankruptcy.

How should the federal court handle the conflict between the state and federal provisions?

Answer 18

Apply federal substantive and procedural law, because this is a bankruptcy action.

If the action is a federal-question claim, then federal substantive and procedural law will control. 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 19

In an action initiated in federal district court under diversity jurisdiction, the plaintiff requested and the defendant agreed to waive service of the summons. This waiver was timely returned to the plaintiff who filed it with the court 60 days after the plaintiff had sent the request to the defendant. Thirty-five days later, the defendant filed a motion to dismiss the action based on lack of personal jurisdiction. The defendant was incorporated in and had its principal place of business in a foreign country. The cause of action arises out of the defendant’s contacts with the plaintiff in the forum state. The forum state has a long-arm statute permitting a state court to exercise personal jurisdiction to the extent permitted by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.

Which of the following arguments against the defendant’s motion, if asserted by the plaintiff, would not be successful?

Answer 19

Answers:

A: You Selected: The motion is untimely.
B: Personal jurisdiction is proper under state law.
C: Personal jurisdiction is proper under the Due Process Clause of the Fourteenth Amendment.
D: Correct Answer: The defendant’s waiver of service also constituted a waiver of any objection to personal jurisdiction.

The federal rules specifically provide that waiver of service does not waive any objection to personal jurisdiction or to venue.

Question 20

An engineer at a technology company signed a non-compete agreement preventing him from discussing confidential matters with specific named competitors. One year later, the company learned that the engineer had been working with a major competitor as a contractor and had been using confidential information acquired during his employment with the technology company. In order to immediately prevent the engineer from using information in violation of the non-compete agreement, the technology company properly filed a complaint against the engineer in federal court, alleging a violation of the agreement and seeking an injunction that would prevent the engineer from continuing to work with the competitor. Over the engineer’s objection, the court issued a temporary restraining order that held the non-compete agreement to be valid and enforceable, and prohibited the engineer from working with the competitor. The court further stated that the restraining order would remain in effect for 21 days, with a full hearing on a preliminary injunction scheduled for the day the temporary restraining order expired. Twenty days later, the engineer resumed working with the competitor.

Has the engineer violated the temporary restraining order?

Answer 20

No, because the temporary restraining order was no longer in effect.

A temporary restraining order (TRO) preserves the status quo of the parties until there is a full hearing on the application for a preliminary injunction. This temporary injunction remains in effect for an amount of days to be set by the court, but no longer than 14 days unless good cause exists or by consent of the adversary. Here, the court could determine the applicable period, but could not extend that period beyond 14 days absent good cause or consent of the adversary. The facts indicate that the engineer (the adversarial party) objected to the TRO, and there was no good cause shown other than the urgency of any normal injunction. Therefore, the customary 14-day period would apply.

Question 21

A bicyclist sued a motorist in federal court sitting in diversity jurisdiction for damages resulting from an accident. The complaint alleged that the accident was caused by the motorist’s negligence and sought damages in a specific amount. The motorist, in his answer, specifically denied allegations in the complaint that related to his liability, but did not address the allegations relating to damages sought by the bicyclist. Consequently, the bicyclist contends that the motorist has conceded the issue of damages.

Is the bicyclist correct?

Answer 21

No, because the failure to deny an allegation relating to the amount of damages does not deem that allegation admitted.

Although an allegation in the plaintiff’s complaint is generally deemed admitted if that allegation is not denied in the answer, the same is not true if the allegation relates to the amount of damages.

Question 22

A homeowner filed a complaint against a contractor for damages arising from negligent construction of an addition to the homeowner’s house. The complaint was timely and properly filed in federal district court sitting in diversity jurisdiction. Nineteen days after the contractor filed his answer, the homeowner learned that material supplied by a manufacturer and used by the contractor was defective. The next day, without leave of the court or the contractor’s agreement, the homeowner amended the complaint to add the manufacturer as a defendant in this action. The manufacturer filed a motion to dismiss the complaint against her. The manufacturer pointed out that she had no knowledge of the action nor reason to know of it prior to the homeowner’s amendment of the complaint, and that the controlling statute of limitations had expired after the original complaint was filed and before the amended complaint was filed.

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

Answer 22

Yes, because the statute of limitations had expired before the amended complaint was filed.

Because the statute of limitations with respect to the homeowner’s claim against the manufacturer had expired prior to the time that the homeowner amended the complaint to include this claim, the court should grant the manufacturer’s motion to dismiss.

Question 23

A plaintiff filed a complaint in federal district court against a defendant, a natural person, based on diversity jurisdiction. Two days later, the plaintiff sent a notification of the action and a proper request for waiver of service of process to the defendant, who was domiciled in another state. Upon receiving the request, the defendant signed and returned the waiver. Thirty days after the plaintiff sent the request for waiver of service and 20 days after the defendant returned the signed waiver, the defendant served his answer on the plaintiff.

Was the defendant’s answer timely?

Answer 23

Yes, because the answer was served within 60 days after the plaintiff sent the request for waiver of service.

If a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside a judicial district of the United States. In this case, the defendant timely returned a signed waiver of service to the plaintiff. Accordingly, the defendant had 60 days from the date the plaintiff’s request was sent to serve an answer to the complaint. Because he served his answer 30 days after the request for waiver of process was sent, the defendant’s answer was timely.

Question 24

An account holder designated the plaintiff as the payee for an account held at a state bank. Upon the account holder’s death, the plaintiff brought an action in federal court to compel the bank to pay to him the $95,000 held in the account. The bank balked at paying the plaintiff because a second claimant had informed the institution that the accountholder, prior to her death, had transferred her rights to the account to the second claimant. The plaintiff filed the action in a federal district court located in the state of which both the plaintiff and the second claimant are citizens. The bank is a citizen of another state.

The bank has filed a motion to dismiss for failure to join a necessary party. Is the second claimant a necessary party?

Answer 24

Yes, because the bank could have to pay the second claimant as well as the plaintiff the amount in the account.

A party is considered necessary if the party’s absence would leave the existing parties subject to a substantial risk of multiple or inconsistent obligations. Here, the bank could be ordered to pay the $95,000 in the account to the plaintiff in this action, and to pay $95,000 to the second claimant if the second claimant were to pursue a separate action. Consequently, the second claimant is a necessary party.

Question 25

A patron who was being seated at a restaurant sustained injuries when another patron, agitated over not being seated, started a physical altercation. The patron filed a complaint in federal district court against both the other patron and the restaurant, alleging that the assault and battery committed by the other patron and the negligence of the restaurant resulted in the patron’s injuries. The patron’s complaint asserted that the other patron and the restaurant were jointly and severally liable for his injuries. The complaint did not allege that the defendants acted in concert.

Is joinder of these defendants and claims proper?

Answer 25

Yes, because the defendants were alleged to be jointly and severally liable for the patron’s injuries.

In order to join defendants in a single action, the plaintiff’s right to relief must be asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence. Here, the patron has asserted that the other patron and the restaurant are jointly and severally liable for his injuries that arose out of the physical altercation started by the other patron.

Question 26

A plaintiff properly filed a complaint in federal district court seeking damages from two defendants. The first defendant properly filed a cross-claim against the second defendant. The second defendant has a claim against the first defendant that arises out of the same transaction as the original complaint.

Is the second defendant required to bring this claim in the current action?

Answer 26

Yes, because it is a compulsory counterclaim.

If a party files a claim, a counterclaim, or a cross-claim against another party, the second party must file any claim that that party has against the first party that arises out of the same transaction or occurrence as the first party’s claim. The first defendant is an opposing party with respect to this mandatory claim; accordingly, the second defendant’s claim is a compulsory counterclaim. (Note: A cross-claim may properly be pursued in the current action only if it arises out of the same transaction or occurrence as the original complaint. Consequently, a claim made in response to a cross-claim that arises out of the same transaction or occurrence as the original complaint also arises out of the same transaction or occurrence as the cross-claim.)

Question 27

The owner of a car was severely injured and her car was destroyed when she became distracted by a display on an electronic billboard and lost control of her car. The car owner brought a negligence action based on diversity jurisdiction in federal district court against the owner of the billboard, as well as the advertising firm that created the display and the manufacturing company that sold the product displayed. The manufacturing company filed a cross-claim against the advertising firm based on an indemnification clause in their contract. Instead of filing an answer, the advertising firm served a motion to dismiss the cross-claim for failure to state a claim upon which relief can be granted. An affidavit regarding the oral waiver of the indemnification clause was attached to the motion.

Before the court takes any action with regard to the advertising firm’s motion, can the manufacturing company voluntarily withdraw the cross-claim without the approval of the court or the consent of the parties?

Answer 27

No, because the advertising firm served a responsive pleading.

A party may voluntarily dismiss a cross-claim (or a counterclaim or third-party claim) without the approval of the court or the consent of the parties before a responsive pleading is served, or if there is no responsive pleading, before evidence is introduced at a hearing or trial. The service of a summary judgment motion by a co-party with respect to a cross-claim (or counterclaim or third-party claim) does not cut off a party’s ability to voluntarily dismiss the claim without court approval or the consent of the other parties. This occurs only after evidence is introduced at the court hearing on the motion. Here, although the motion filed by the advertising firm was a motion to dismiss for failure to state a claim upon which relief can be granted, the attachment of an affidavit presenting evidence beyond the pleadings converted the motion into a summary judgment motion. Nevertheless, because the court had not held a hearing on this motion at which evidence was presented, the manufacturing company can voluntarily withdraw the cross-claim without court approval or the consent of the parties.

Question 28

Family members of a deceased individual properly filed an action for money damages in federal court against a funeral home for negligent infliction of emotional distress based on the alleged mishandling of the remains of the deceased. The funeral home timely and properly served an answer to the complaint. Thirty days later, including eight weekend days, the family members served a demand for a jury trial on the funeral home. The demand was served on a holiday. On the following day, a non-holiday weekday, the family members filed the jury trial demand with the court.

Was the family members’ demand for a jury trial timely?

Answer 28

No, because the demand for a jury trial was not served on the funeral home within 14 days of service of the answer.

A demand for a jury trial must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury. Here, the complaint sought damages, which is an action at law for which a jury trial may be had. However, the demand was not made within 14 days of service of the funeral home’s answer, which is the only responsive pleading the funeral home may make that is directed to the plaintiff’s complaint. Therefore, the demand for a jury trial was not timely.

Question 29

In a civil action tried in federal district court, the judge determined that nine jurors were needed due to the anticipated length of the trial to ensure that six jurors remained when the case was sent to the jury for deliberation. The judge’s determination was made in good faith and based on her experience as a judge dealing with juror requests for dismissal from a case. Consequently, nine individuals were selected as members of the jury. However, after each attorney had made his closing argument, all nine jurors remained. Without consulting either party, the judge, acting without discriminatory intent with regard to race or gender, excused the three jurors who had been selected last; she did not demonstrate good cause for excusing these jurors.

Was this action proper?

Answer 29

No, because the judge did not excuse the three jurors for good cause.

An individual who has been selected to serve as a juror must participate in the verdict unless excused for good cause, such as illness, family emergency, or misconduct. The federal rules do not authorize the dismissal of jurors to arrive at a specific number of jurors. Here, the judge excused the three jurors without demonstrating good cause. Therefore, the judge’s action was not proper.

Question 30

A recluse successfully pursued a libel action in federal district court against a newspaper publisher. Fifteen months after the entry of the judgment, the publisher discovered evidence that clearly established the truthfulness of the statements that the publisher had made about the recluse. This evidence, although it existed at the time of the trial, could not have been discovered earlier despite reasonable diligence by both parties. Promptly upon learning of this evidence, the publisher filed a motion for relief from the judgment with the court.

Should the court grant the publisher’s motion?

Answer 30

No, because the motion was not timely.

A motion for relief from a judgment under Rule 60(b) that is based on newly discovered evidence must be filed within a reasonable time and no later than one year from the entry of the judgment. Because the publisher did not file this motion until 15 months after the judgment had been entered, the motion is therefore not timely.

Question 31

In a case properly brought in federal district court, the plaintiff alleges that the state police, acting under a longstanding custom of using excessive force against people of a certain ethnicity in traffic stops, beat him up during a routine traffic stop. The plaintiff requests $100,000 in damages to remedy this injury and, fearing that the state police are targeting him, also requests preliminary and permanent injunctions prohibiting the police from using excessive force against him. The court issues an order refusing to grant the plaintiff a preliminary injunction and setting the case for trial. Three weeks later, the plaintiff appeals this order to the appropriate U.S. Court of Appeals. Can the appellate court hear this appeal?

Answer 31

Yes, as a matter of right.

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

Question 32

While driving in State A, the driver of a car ran a stop sign and struck a pedestrian, a citizen of State A. The driver, a citizen of State B, had never before been in State A and has not been since. The driver was passing through the state in response to a summons to testify as a victim at a criminal trial being conducted in a neighboring state. The pedestrian filed a negligence action against the driver in federal district court in State A. The driver of the car was served with process in her home state in accordance with the federal service of process rules. The driver has timely filed a motion to dismiss this action for lack of personal jurisdiction. State A has a long-arm statute that permits a state court to exercise personal jurisdiction to the extent permitted by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. State A also has a statute that prohibits the service of process on a defendant who is passing through the state in response to a summons to testify at a trial held in another state. Should the court grant the motion to dismiss for lack of personal jurisdiction?

Answer 32

No, because the accident occurred in State A.

State A’s long-arm statute permits a state court to exercise personal jurisdiction to the extent permitted by the Due Process Clause. The Due Process Clause requires that the defendant have sufficient minimum contacts with the forum state in order for a court to exercise personal jurisdiction over the defendant. Here, although the driver’s sole contact with State A is confined to a trip through the state, the cause of action stems from that trip during which the driver struck the pedestrian. Consequently, although a court in State A would not have general personal jurisdiction over the driver, a court would have specific personal jurisdiction. Although State A’s long arm statute does not specifically provide for a federal court to exercise personal jurisdiction, the federal rules provide that 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.” Rule 4(k)(1)(A).

Question 33

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?

Answer 33

Grant the motion, because diversity of citizenship does not exist.

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.

Question 34

An employee filed an action in federal district court in her home state against her employer for injuries she sustained when she was attacked by a coworker, and sought good-faith damages in excess of $75,000. The employer is incorporated in the state where the employee is domiciled, though its headquarters are in another state. The basis for the employee’s claim is a law recently passed by the forum state that is intended to minimize instances of workplace violence, and requires that employers “conduct background checks on all employees in a manner compliant with the federal Violence in the Workplace Act.” In her complaint, the employee, while acknowledging that the federal Violence in the Workplace Act does not explicitly recognize a right of private action, contends that her state-law claim turns on the resolution of a federal statutory issue, namely, the type of background check that suffices for purposes of the federal act. If the court determines that it has subject-matter jurisdiction over this action, which of the following justifies this determination?

Answer 34

The court has jurisdiction due to the substantial importance of the federal use to the resolution of the state-law claim.

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. In this case, whether the employer performed a sufficient background check is an essential element of the employee’s claim, and the federal statute’s requirements are actually disputed. The determination of the federal statute’s requirements are properly made in federal court.