Civil Procedure Flashcards
Federal question jurisdiction requires that the federal question appear on a fair reading of the complaint.
Because the plaintiff did not invoke federal law (his claims arose under state law), there will be no federal question jurisdiction.
Example?
D, school argued that it fired an employee based on a federal regulation prohibiting schools from employing anyone who had been convicted.
BUT
P filed suit for unlawful discrimination based on state law.
The citizenship for diversity purposes is determined …
…at the time the complaint was filed.
Federal courts have original jurisdiction over admiralty or maritime cases. This means that, …
…even where a plaintiff’s tort claims are grounded in state law, a federal court will have jurisdiction if the tort occurred on navigable waters or was caused by a vessel on navigable waters and the case has a “maritime nexus.” Having a maritime nexus means the incident at issue had a potentially disruptive impact on maritime commerce and a substantial relationship to traditional maritime activity.
Can attorney fees be included in the amount in controversy?
Yes.
Ordinarily, if a defendant is physically present in a jurisdiction and is served with process while there, the court’s exercise of personal jurisdiction over that defendant constitutional. It does not matter if the defendant’s presence at the time is temporary or unrelated to the lawsuit. However, …
the defendant’s presence must be voluntary and the plaintiff cannot have coaxed the defendant into the state under false pretenses.
i.e. Had the customer served the woman while she happened to be in the state on one of her own business trips, this would have been enough to provide the court with personal jurisdiction over her. Because the customer instead deceived the woman into entering the state in order to physically serve her, such service is improper and the court will not have personal jurisdiction over the woman.
Quasi in rem jurisdiction applies …
…where a court cannot exercise in personam jurisdiction due to there not being a sufficient long-arm statute in place, but where there is property in the forum state that is attached as part of the relief requested. There must still be minimum contacts and a finding that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.
When analyzing whether a case should be dismissed under the doctrine of forum non conveniens, a court will …
…balance a number of private and public interests, which generally go to the inconvenience and expense that would be incurred by the parties, the court, and the community in conducting a trial in the forum.
Whether a jury might be biased is not one of the factors generally considered in a forum non conveniens analysis.
Federal circuit courts of appeal do not give deference to district courts’ interpretations of unsettled state law, but …
…review those decisions de novo.
Methods for a federal court to approach a question of unsettled state law.
Where a federal court is faced with a question of state law where the applicable law is uncertain or unclear, a federal court
(1) Under the doctrine of abstention, may abstain from hearing a question of unsettled state law.
(2) May certify its questions to the state court to obtain a ruling on the issue.
(3) May try to predict how the applicable state court would rule on the issue.
Courts may create federal common law in certain situations, pursuant to Clearfield Trust Co. v. U.S. [318 U.S. 360 (1943)]. One situation that a court may do so is …
..where Congress has passed a law which inadequately addresses the situation concerned.
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation, may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.
If a party fails to make required disclosures under Fed. R. Civ. P. 26(a), the court may sanction that party by …
…requiring the party to pay the reasonable costs, including attorney fees, caused by the delay, informing the jury of the failure to produce the evidence earlier, and any other sanctions.
Typically, a plaintiff is required to make a demand for a jury trial within 14 days of being served with a notice of removal by the other party.
Exception?
Where, however, the state law did not require express demand, the parties do not have to demand a jury trial unless the court so orders it, or at a party’s request.
The court must give the parties a chance to object to the proposed jury instructions …
…before the final jury arguments and out of the jury’s hearing.
When must a party object to a proposed jury instruction?
At the time the court informs it of the proposed jury instruction, or at the earliest time to object.
Demand for a jury trial must be made …
…within 14 days after the service of the last pleading directed to the triable issue, or the right is waived.
On a motion for summary judgment, may a plaintiff may rely on evidence that would be inadmissible at trial to satisfy the production burden?
No.
Dismissal of a claim under Fed. R. Civ. P. 12(b)(6) is with or without prejudice?
with
v.
Where a plaintiff has voluntarily dismissed a case by filing a notice of dismissal before the defendant has filed an answer, then the dismissal will be without prejudice. The defendant here had served a motion to dismiss, which had not been ruled upon, and had not yet filed an answer when the plaintiff served her notice of dismissal, so the plaintiff may properly bring a new action.
Jurors - number, excusing, unanimous verdict
A jury must begin with between six and 12 members.
The parties may stipulate to having less than six jurors render a verdict in exceptional circumstances.
Jurors may be excused during the trial.
Pursuant to Fed. R. Civ. P. 48(b), a verdict must be unanimous.
Where a jury returns a verdict that is less than unanimous, the court may poll the jurors and then send them back to continue to deliberate.
Pursuant to Fed. R. Civ. P. 52(c), a court may enter a judgment against a party based on a partial finding on an issue, where the action may only be maintained on a favorable finding on that issue.
Example?
I.e.
The student’s First Amendment claim required that his religious beliefs be sincerely held, School made Rule 52 (c) motion, arguing student had failed to show his belief was sincere.
If the court grants the motion, however, such an order must be accompanied by findings of fact and conclusions of law.
The general rule is that interlocutory orders are not reviewable prior to final judgment, but this is not an absolute rule as the collateral order doctrine does permit interlocutory review in certain instances.
What is collateral order doctrine?
Interlocutory orders are generally unreviewable, unless the order:
1) conclusively determines the disputed question; 2) resolves an important issue completely separate from the merits of the action; and 3) is effectively unreviewable on appeal from a final judgment.
Where an interlocutory order is not otherwise reviewable under the collateral order doctrine, ….
… a judge may still certify the order for appeal if he or she indicates in the order that the order involved a controlling question of law as to which a substantial ground for difference of opinion exists and that an immediate appeal from the order may materially advance the termination of the litigation.
Appelate review - de novo, clear error
An appellate court will review conclusions of law de novo–meaning the court will conduct a non-deferential review–but will only disturb factual findings if they are clearly erroneous.
each party is limited to …. interrogatories
a party is entitled to …. depositions as a matter of right.
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As a general rule, people do not have standing as taxpayers to challenge the manner in which the federal government spends tax dollars, because their interest is too remote.
Under an exception to this general rule, federal taxpayers have standing to challenge federal appropriation and spending measures if they can establish that the challenged measure:
(i) was enacted under the taxing and spending power of Congress; and
(ii) exceeds some specific limitation on the power. The only such limit found by the Court to date on the taxing power is
the Establishment Clause.
A federal court is required to analyze whether it has personal jurisdiction over a defendant in the same manner as a state court. Thus, a personal jurisdiction analysis is exactly
the same in federal court and in state court.
In other words, it is irrelevant whether the court is a
state court or a federal court when it comes to a personal jurisdiction question.
A small corporation manufactures and sells
widgets in State A and State B. It is a State A
corporation and it operates three stores from
which it sells its widgets—two are in the District
of State A and one is in the District of State B.
The corporation has no presence, sales, or operations
anywhere else. A consumer who resides in
the District of State C purchased a widget from
the corporation’s State B store. The consumer
was subsequently injured while using the widget
at his home. The consumer intends to file a
products liability action against the corporation
in federal district court.
In what district or districts is venue proper?
Federal venue in civil actions is proper in
(i) the district where any defendant resides, if all defendants
are residents of the state in which the district is located; and
(ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred.
If there is no district anywhere in the United States that satisfies (i) or (ii), the action may be brought in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.
The District of State C (place of the injury) and the District of State B (place of purchase) are proper because substantial events giving rise to the claim occurred there.
A corporation is deemed to reside in any district in which it is subject to personal jurisdiction with respect to the action in question. The facts state that the manufacturer is a State A corporation and has its principal place of business in the District of State A. As a result, it is subject to personal jurisdiction there based on a general jurisdiction theory. Thus, the District of State A is a place of proper venue because that is where the manufacturer (the only defendant) resides for purposes of venue
A citizen of State A purchased life insurance
by mail from a State B insurance company.
The policy was the only one that the company
had ever sold in State A. The purchaser mailed
premiums from State A to State B for five years,
and then died. The insurance company refused
to pay the policy benefits. The purchaser’s
administrator sued the company in State A
state court. The state has a long arm statute that
grants a state court in personam jurisdiction
over a defendant who “contract[s] to insure any
person, property, or risk located within this State
at the time of the contracting.” The insurance
company argued that its only contact with State
A since it began its business was the purchaser’s
insurance policy, and that this single contact
does not meet the minimum required for the
exercise of in personam jurisdiction under International
Shoe.
How should the court rule on the minimum
contacts issue?
The court should rule for the purchaser’s administrator on the minimum contacts issue and exercise in personam jurisdiction over the insurance company.
Generally, fewer contacts will suffice for in personam jurisdiction if those contacts are directly related to the cause of action.
Here, even though the sale of the insurance policy constituted only a single contact, it is the contact at issue in the case. Thus, the exercise of jurisdiction would be constitutional.
A pedestrian filed an action against a driver
in federal district court, alleging negligence.
The attorney for the driver has interviewed an
eyewitness whose testimony will clearly indicate
that the driver was at fault.
Must the driver disclose the existence and
identity of the eyewitness to the pedestrian?
The driver must disclose the identity of the witness in response to an appropriate interrogatory.
Federal Rule 26(a) requires, as an initial disclosure, a party to reveal the name and contact information of individuals who are likely to have discoverable information and who the disclosing party may use to support his claims or defenses (unless the use would be solely for impeachment).
After initial disclosures are made, discovery proceeds, and the parties may continue with discovery of nonprivileged information that is relevant to any party’s claim or defense, including the names and contact information of any person who knows of any discoverable matter.
Here, the eyewitness would not need to be disclosed as an initial disclosure because the driver obviously will not use the eyewitness to support the driver’s claim or defense. However, the identity of the eyewitness would need to be disclosed eventually, assuming the pedestrian submits a proper
discovery request.
A deposition may be used at trial for any purpose if the deponent is at a distance greater than ….
…100 miles from the place of trial.
A man filed a negligence action against a
woman in federal district court, alleging that
the woman negligently caused a collision
between their vehicles and seeking compensatory
damages. The man served on the woman
a request that the woman produce a specified
electronic recording for inspection or copying.
The woman made the recording immediately
after the accident while waiting for the police to
arrive. She made the recording for the specific
purpose of preparing for litigation that she knew
would ensue. The recording contains the observations
of three witnesses to the accident. The
woman objected to the man’s request for production
of the recording, and the man filed a motion
to compel production of the recording.
Should the court order the woman to produce
the recording?
The court should not order the woman to produce the recording unless it finds that the man has substantial need for the recording and is unable to obtain the same information without undue hardship.
In general, a party’s work product made in anticipation of litigation is not discoverable.
However, the work product may be discovered if the opposing party can show substantial need
and that he cannot obtain the same information in an alternative way without undue hardship.
Can you waive a demand for a jury trial?
Under Federal Rule 38, a party who desires a jury trial
(on some or all fact issues) must file a written demand with the court and serve it on the parties.
Failure to make such a demand within 14 days after the service of the last pleading directed to the jury-triable issue constitutes a waiver by that party of any right to trial by jury.
***
Although the woman could amend her complaint as of right within 21 days of service of the homeowner’s answer, she did not have the right to include in it a demand for jury trial
A driver collided with a bicyclist, severely
injuring her. The bicyclist sued the driver in
the federal court for State A, properly invoking
diversity of citizenship. In his answer, the driver
raised the defense of contributory negligence,
which is a complete defense under the law of
State A, where the accident occurred. The court
instructed the jury to return a general verdict
with answers to written questions. In its written
answers, the jury found that both the driver
and the bicyclist were negligent. Nonetheless, it
returned a general verdict awarding the bicyclist
damages for her medical expenses and for
her pain and suffering.Which of the following
options is NO T available to the court to redress
the inconsistency between the general verdict
and the jury’s finding of contributory negligence?
Under the Federal Rules, when the jury’s answers accompanying a general verdict are consistent with each other but are inconsistent with the general verdict, the court may
(i) enter a judgment that is consistent with the answers, disregarding the general verdict;
(ii) instruct the jury to deliberate further regarding its verdict and answers; or
(iii) order a new trial.
When a verdict shows on its face that the jury failed to follow the court’s instructions, …
…the verdict may be set aside, and either the jury will be asked to reconsider its verdict or a new trial will be ordered.
A manufacturer sold to a consumer an expensive
laser printer that never worked properly.
Therefore, the consumer never fully paid for
the printer. The manufacturer sued for specific
performance of the contract of sale of the printer.
The consumer filed a counterclaim for a breach
of warranty, asking for $85,000 in damages.
The consumer demanded a jury trial, but the
manufacturer objected.
Assuming that the demand for a jury trial
was timely made, how will the court rule on the
availability of a jury trial?
The court will grant a jury trial because the underlying dispute is legal in nature. The court will
look to the basic substance of the case to see if a jury trial is appropriate. Although the manufacturer’s
suit is equitable in nature, the consumer’s counterclaim for breach of warranty is an action
at law, in which a jury trial is available on demand.
The plaintiff sued the defendant in federal
court for breach of contract. The plaintiff
presented a detailed case in which she showed
the existence of the contract, its breach, and
damages. The defendant then presented his
defense, which consisted solely of evidence that
he regretted dealing with the plaintiff. At this
point in the trial, the plaintiff feels she should
prevail.
What should she move for at this point in the
litigation?
At this point in the litigation, when the opposing party has been fully heard, the appropriate motion is for judgment as a matter of law (formerly known in federal practice as a motion for
directed verdict). The evidence will be viewed in the light most favorable to the party opposing the motion, and will be granted if there is no legally sufficient evidentiary basis for a reasonable
jury to find in favor of that party.
Motion for judgment on the pleading and motion for summary judgment pretrial motions:
a motion for judgment on the pleadings considers no evidence outside the complaint, answer, etc.,
while a motion for summary judgment considers affidavits, discovery material, and other evidence submitted with
the motion.
the jury demand because a jury demand may be
withdrawn only if …
…all parties consent
***
There is no
timing specified in the federal rules for withdrawing a jury demand, but a jury demand can be
withdrawn only with the consent of all the parties. The 14-day period represents the general time
period for initially demanding a jury.
A woman who had been living in a foreign
country for many years traveled to the United
States to assist her brother, who had been
indicted for a serious crime committed in State
A. She retained a lawyer who resided in State A
to represent her brother, and then she returned to the foreign country. Thereafter, the lawyer sent
the woman a bill for $100,000 for his services,
but she refused to pay. Before she moved to the foreign country, the woman had resided in State B. Although the woman is still a citizen of the United States, she had moved to the foreign country 10 years ago, intending to live there
permanently.May the lawyer commence an action against the woman for breach of contract in the federal court for State A?
(A) Yes, because the action is between citizens
of different states.
(B) Yes, because the action is between a citizen
of a state and an alien.
(C) No, because the federal court for State A
may not exercise personal jurisdiction over
the woman.
(D) No, because the court lacks subject matter
jurisdiction.
(D) The court lacks subject matter jurisdiction of the action because the lawyer’s state law claim is
supported neither by diversity of citizenship jurisdiction nor by alienage jurisdiction. Although
the woman is a citizen of the United States, she is not a citizen of any state of the United States.A person is a citizen of the state or country where she is domiciled. The question tells us that the
woman moved from State B to a foreign country and has been living there for many years. Thus,
it is reasonable to conclude that she changed her domicile from State B to the foreign country. However, the woman is not an alien; rather she is a United States citizen without a state citizenship.
(B) is incorrect because both the lawyer and the woman are citizens of the United States. A
United States citizen may become a citizen of a foreign country by renouncing her United States
citizenship and acquiring the citizenship or nationality of the foreign country by a formal process called naturalization. Here, the woman is not an alien.
(C) is incorrect because a court in State A would have specific personal jurisdiction over the woman because she entered into a contract in
State A with the lawyer (her agreement to retain and pay him) and the lawyer’s claim arises out of
that contract.
The plaintiff, a citizen of State A, filed suit against the defendant, also a citizen of State A, in federal district court, alleging that the defendant had failed to perform a contract to provide 1,000 fully automatic machine guns. The defendant claimed that a recently enacted federal statute made the manufacture of fully automatic machine guns illegal.
Federal question jx?
The court does not have federal question jurisdiction because the recently enacted federal
statute arises only in anticipation of the defendant’s defense. This is insufficient to confer federal question jurisdiction.
The plaintiff and the defendant are both citizens of State A. The plaintiff wished to sue the defendant in a federal court on a $100,000 claim. For this reason, and only this reason, she moved permanently to State B and filed suit in a federal court there, with jurisdiction being based on diversity of citizenship. A few days after being properly served, the defendant, after accepting a job offer from a company based in State B, moved permanently to State B. For purposes of the plaintiff’s case, what are the citizenships of the parties?
(A) Both the plaintiff and the defendant are
citizens of State B.
(B) The defendant is a citizen of State A, and
the plaintiff is a citizen of State B.
(C) The defendant is a citizen of State B, and
the plaintiff is a citizen of State A.
(D) Both the plaintiff and the defendant are
citizens of State A.
(B) The defendant is a citizen of State A, and the plaintiff is a citizen of State B.
Diversity is determined at the time the action is filed, not when the cause of action accrues or after the action commences. Also, the plaintiff’s motive for moving to State B is irrelevant, as long as the change of citizenship is genuine; i.e., she intends to remain there. The defendant’s motive is also irrelevant.
Even though he moved to State B for reasons unrelated to the case and his move appears to
be enough to change his citizenship, citizenship is still determined at the time the action is filed,
and thus he is still considered to be a citizen of State A for purposes of this lawsuit.
Three years ago a woman’s husband abandoned her and their home in State A and moved to State B, where he is now a citizen. The woman now files against her husband for divorce in federal court in State A, seeking a property settlement valued at $200,000. The husband moved to dismiss for lack of jurisdiction. Will the court grant the husband’s motion?
(A) No, because diversity of citizenship is present
and the amount in controversy exceeds
$75,000.
(B) No, if State A has a long arm statute
granting personal jurisdiction over the
husband.
(C) Yes, if the husband moves to State A after
suit is filed.
(D) Yes, because federal courts do not have
subject matter jurisdiction over domestic
relations cases.
(D) The court will grant the husband’s motion.
Even if diversity and the minimum amount in controversy are present, the federal district courts will not exercise jurisdiction over domestic relations or probate proceedings.
A supplier of rivets contracted to supply rivets to an aircraft manufacturer. The aircraft manufacturer cancelled the order, and the supplier intends to file a breach of contract action against the aircraft manufacturer, seeking damages of $600,000. The supplier is a State A corporation, and all its operations are in State A. The aircraft manufacturer is a State B corporation.
Its corporate headquarters are in State C, but its manufacturing operations are in State A. The supply contract was signed in State A, and it provided that the rivets would be delivered and
paid for in State A. Can the supplier maintain an action based on diversity of citizenship jurisdiction in a federal district court?
(A) No, because both corporations are citizens
of State A.
(B) No, because all relevant events giving rise
to the claim occurred in one state.
(C) Yes, because the supplier is a citizen of
State A and the aircraft manufacturer is a
citizen of State B and State C.
(D) Yes, because the supplier is a citizen of
State A and the aircraft manufacturer is a
citizen only of State B.
(C) The supplier can maintain the action. Diversity of citizenship jurisdiction requires complete diversity— meaning that no plaintiff may share state citizenship with any defendant—and the amount in controversy must exceed $75,000. Here, the issue is the citizenship(s) of the parties. For purposes of diversity of citizenship jurisdiction, a corporation is deemed to be a citizen of every state in which it is incorporated and the one state in which it has its principal place of business. The supplier is a citizen of State A only, given that State A is both its state of incorporation and its principal place of business. The aircraft manufacturer is a citizen of State B, its state of incorporation, and the state identified as its principal place of business. The United States Supreme Court has held that the principal place of business is the corporate headquarters where the corporation’s high level officers direct and control the corporation’s activities. Here, the aircraft manufacturer’s headquarters are in State C, making State C its principal place of business despite the fact that its manufacturing operations are in State A.
(A) is not correct because, as explained above, a corporation’s principal place of business is the state from which the corporation’s high level officers direct and control the corporation’s activities, not the state in which it has all of its physical operations.
(B) is not correct because the place where the events took place has no role in diversity of
citizenship jurisdiction. (The events will determine where venue would be proper, but that is a separate question from subject matter jurisdiction.)
(D) is not correct because a corporation may have two (or more) state citizenships, as explained above.
An employee sued his employer in federal
court in State B, alleging that the employer
violated federal civil rights statutes by permitting
a hostile work environment in which the employee was afraid to go to work due to harassment from a co-worker. The co-worker is from State A, and both the employer and employee are from State B. The employee properly joined the co-worker under the permissive party joinder rule. The law in State B provided the basis for the employee’s claim against the co-worker, and neither claim exceeded $20,000. Does the federal court have supplemental jurisdiction over the employee’s claim against the co-worker?
(A) Yes, because supplemental jurisdiction exists
whenever the primary claim is based on
a federal question.
(B) Yes, because supplemental jurisdiction may
include claims that involve the joinder or
intervention of additional parties.
(B) The court has supplemental jurisdiction.
When jurisdiction is based on a “federal question” claim, and diversity jurisdiction is not available, a nonfederal claim can be joined only if the court has supplemental (pendent) jurisdiction over it. The court will have supplemental (pendent) jurisdiction over the claim if it arose from the same transaction or occurrence as the federal claim.
Here, although diversity jurisdiction is not available in the claim between the employee and the co-worker because the amount in controversy does not meet the more than $75,000 jurisdictional limit, the court will have supplemental jurisdiction because the hostile work environment claim arose out of the same transaction or occurrence as the federal civil rights claim.
(A) is wrong because it is an incomplete statement of the law. While supplemental jurisdiction may exist whenever the original claim is based on a federal question, to permit it, the state law claim also must be part of the same transaction or occurrence.
The court may decline to exercise its supplemental
jurisdiction on one of four bases:
(i) the case presents a novel or complex issue of state law;
(ii) in a federal question case, the nonfederal claim substantially predominates the case;
(iii) the claims over which the federal court had original jurisdiction have been dismissed (taking into consideration the amount of time the court has spent on the case); or
(iv) there are extraordinary circumstances
for declining jurisdiction.
A State A plaintiff filed a breach of contract action against a State B defendant in federal district court, seeking $100,000 in compensatory damages. Three months after the plaintiff filed and served the complaint, the plaintiff and defendant were in an automobile accident. May the State A plaintiff assert a negligence claim against the State B defendant in the pending breach of contract action to recover damages incurred in the automobile accident?
(A) Yes, but only if the negligence claim seeks
more than $75,000.
(B) Yes, regardless of the amount of the negligence claim, because the court on motion
may permit a plaintiff to file a supplemental
pleading setting out events that happened
after the pleading to be supplemented.
(C) No, because the two claims do not arise
from the same transaction or occurrence or
series of transactions or occurrences.
(D) No, because the time for filing an amended
or supplemental complaint has expired.
(B) The plaintiff may assert the negligence claim if permitted by the court.
The court on motion may permit a plaintiff to file a supplemental pleading that relates to matters occurring after the date of the original pleading. [Fed. R. Civ. P. 15(d)]
(A) is incorrect because a plaintiff may aggregate
all his claims against a single defendant to meet the jurisdictional amount, regardless of whether
the claims are legally or factually related. Since the contract action already exceeds $75,000, the
amount in controversy in the negligence action is irrelevant.
(C) is incorrect because a plaintiff may bring all claims he has against a defendant in a single action regardless of whether they are related.
(D) is incorrect because there is no time limit on when a supplemental pleading can be filed.
Objections to service of process must be asserted in …
Objections to venue must be asserted in…
… the defendant’s first response to the complaint—whether that response is a Rule 12(b) pre-answer motion or an answer—or else it is waived.
… the defendant’s first Rule 12 response to the complaint—whether that response is a pre-answer motion or an answer.
A party may amend a responsive pleading of
right within …
… 21 days after serving it.
Thereafter, the party may amend only with consent of all parties or with leave of the court, but the “court should freely grant leave when justice so requires.”
A State A citizen filed an antitrust action against an State B corporation in federal district court. Fourteen days after filing the complaint and before the State B corporation filed any response, the State A citizen sought to file an
amended complaint, adding a breach of contract claim against the same State B corporation for
more than $75,000. The breach of contract claim
was completely unrelated to the antitrust claim,
and the facts underlying the two claims were completely different and distinct. May the State A plaintiff amend his complaint?
(A) No, because the amendment involves a
claim that does not arise from the same
transaction or occurrence as the original
pleading.
(B) No, because a plaintiff may not join
unrelated claims in the same action.
(C) Yes, but only with leave of the court or
written consent of the defendant.
(D) Yes, even without leave of the court or
written consent of the defendant.
(D) The plaintiff may amend his complaint.
A party may amend a pleading to which a responsive pleading is required of right if the party does so within 21 days after the responsive pleading or other response is served. [Fed. R. Civ. P. 15(a)(1)(B)]
(A) is incorrect because the amendments to
a complaint do not have to arise from the same transaction or occurrence as the original pleadings.
(B) is incorrect because a plaintiff may bring all claims he has against a defendant regardless
of whether they are related.
(C) is incorrect because a complaint may be amended once as a matter of course within 21 days of serving it or 21 days after service of a responsive pleading or pre-answer motion. Thereafter, a pleading may be amended only by the written consent of the defendant or by leave of the court.
Parties may join as plaintiffs or be joined as
defendants whenever …
(i) some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and
(ii) there is a question of
fact or law common to all parties.
An employee sued her employer in federal
court alleging that she was discriminated against
on the basis of her gender in violation of federal
law. At the close of the employee’s evidence, the
employer moved for judgment as a matter of law,
contending that the employee failed to submit
adequate evidence to prove her case. At the close of all evidence, neither party made any motions, and the case was submitted to the jury. The jury returned a verdict for the employee, finding that she was discriminated against on the basis of gender. Twenty-five days after the judgment was filed, the employer filed a renewed motion for judgment as a matter of law.
Should the court grant the motion?
(A) No, because the employer did not move for
judgment as a matter of law at the close of
all the evidence.
(D) Yes, if the court finds that the verdict is
against the weight of the evidence.
(C) The court should grant the employer’s motion if it believes a jury would not have had a legally
sufficient basis to find for the jury.
If a defendant moves for judgment as a matter of law under Rule 50(a) at any point during the trial, it may renew that motion after the jury reaches a verdict, regardless of whether it had moved for judgment as a matter of law at the close of all the evidence.
The motion to renew must be made within 28 days after the jury returns its verdict.
(D) is incorrect because it gives the wrong standard. A court may only grant a motion for judgment as a matter of law if there is no legally sufficient evidentiary basis for it. In deciding the motion, the trial judge is not free to weigh the evidence. Rather, she must view it in the light most favorable to the verdict winner.
A plaintiff filed a proper diversity suit in federal district court against a defendant for battery stemming from an altercation the two had in a bar. The two parties were former business partners, and the defendant filed a counterclaim against the plaintiff for breach of contract relating to their former business dealings. The plaintiff filed a motion for summary judgment in the battery suit, and the court granted it. The court’s order simply stated: “Plaintiff’s motion for summary judgment on the battery claim is granted.” The defendant appeals the grant of summary judgment. Can the court of appeals hear the defendant’s appeal?
(A) Yes, because the summary judgment ruling
was a final judgment on the merits.
(D) No, because there has not been a final
judgment on the merits since the contract
claim has not been adjudicated
(D) The court of appeals cannot hear the defendant’s appeal because there has not been a final judgment on the merits in this case.
With the exception of some interlocutory orders, only final orders are reviewable on appeal. _A final order on the merits disposes of the whole case
by rendering judgment as to all the parties and all causes of action._When multiple claims or
parties are involved in an action, the court may enter a “final judgment” as to fewer than all of
the claims or parties only on an express determination that there is no just reason for delay. If the court does not make such an express determination, a judgment as to fewer than all the claims or parties is not a final judgment and is not appealable.
Here, the court has not made an express determination that there is no just reason for delay. Therefore, the summary judgment ruling is not appealable until there is also a final judgment in the contract action.
(A) is incorrect because a summary judgment ruling can be a final judgment on the merits, but there has not been a final judgment here because of the outstanding contract dispute.
A motorcyclist, a car driver, and a truck driver were involved in a three-vehicle accident in a busy intersection. The motorcyclist filed a negligence action against the car driver for personal injuries suffered in the accident. In the
car driver’s pleadings, she denied that she was negligent and raised the motorcyclist’s contributory negligence as a defense. The jury returned a general verdict in favor of the car driver. The motorcyclist then filed a negligence action against the truck driver. At the appropriate
time, the truck driver filed a motion to dismiss
for failure to state a claim, asserting that the
motorcyclist was precluded from re-litigating his
contributory negligence. Is the truck driver likely to be successful?
(A) Yes, because there was a final judgment on
the merits in the first case.
(B) Yes, because the jury in the first case determined
that the motorcyclist was contributorily
negligent.
(C) No, because it is not clear whether the jury
in the first case found that the motorcyclist
was negligent.
(D) No, because only someone who was a party
in the first action can assert issue preclusion
in the second.
(C) The truck driver is unlikely to be successful because it is unclear whether the jury in the first case found that the motorcyclist was contributorily negligent.
For issue preclusion to apply to an issue,
the issue must actually have been litigated and determined in the previous case.
Here, the issue of the motorcyclist’s negligence was not determined in the first case. The jury could have found that the motorcyclist was contributorily negligent, or it simply could have found that the motorcyclist did not prove that the car driver was negligent. Because this issue was not decided, the truck driver cannot assert issue preclusion (collateral estoppel) against the motorcyclist. (B) is therefore incorrect.
(A) is incorrect because issue preclusion requires more than a final judgment on the merits in the first case. Issue preclusion applies to issues that were actually litigated and essential to the judgment in the first case and are relevant in the second case.
(D) is incorrect because nonparties may be allowed to assert issue preclusion and use a prior judgment to avoid liability in a second suit.
An airplane passenger sued an airplane
manufacturer in federal court after the passenger
was injured in a plane crash. The passenger alleged that a defective part made by the
manufacturer had caused the crash. The case
went to trial, and the jury found in favor of the
passenger. Judgment was entered on March 1.
Six months later, an airplane parts subcontractor
announced a recall of an engine part that had
been found to be defective and was the likely
cause of two previous plane crashes. Until this
announcement there had been no indication to
the public or aviation industry that this part was
defective, because the subcontractor had been
very secretive about its in-house investigation.
This engine part had also been in the passenger’s plane. In light of this new evidence, the manufacturer files a motion for relief from a
final judgment. Is the court likely to grant the manufacturer’s motion?
(A) Yes, because there is newly discovered
evidence that by due diligence could not
have been discovered in time to move for a
new trial.
(B) Yes, because the original judgment is now
void.
(C) No, because motions for relief from a final
judgment must be brought within 28 days
of the entry of judgment.
(D) No, because the manufacturer should have
filed a motion to amend a final order.
(A) The court is likely to grant the manufacturer’s motion.
A court may relieve a party from a final
judgment or order on the ground of newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial.
A motion for a new trial must be filed no
later than 28 days after judgment is entered.
Here, the defendant discovered the new evidence about the recalled engine part six months after the judgment was entered; therefore, it was too late for a motion for new trial.
(B) is incorrect because the original judgment is not void. A judgment is void only if there is a fundamental flaw, such as lack of jurisdiction or due process.
(C) is incorrect because motions for relief from a final judgment on the basis of newly discovered evidence must be brought within one year.
(D) is incorrect because, although a party may file a motion to amend a final order on the basis of newly discovered evidence, it must be filed within 28 days of the order. Because six months have passed since the judgment was entered, this motion is not available to the manufacturer.
In order to reserve its right to appeal an error
in an instruction given or a failure to give an instruction, a party must …
… object on the record before the instructions are given.
If adequately preserved, the instructions are reviewed using an abuse of discretion standard.
However, if the objection is not made (and therefore not preserved for full appellate review), the court’s review is limited to considering whether there was a plain error in the instruction that affected substantial rights. Relief based on plain error is difficult to obtain.
The plaintiff sued the defendant in federal court to recover damages after the defendant crashed his car into the plaintiff’s garage. Judgment was entered for the plaintiff in a valid, final judgment on the merits. The plaintiff had originally thought that the damage done to his yard was minimal, but he later discovered that the yard’s elaborate landscaping would have to be replaced at a high cost. He then files suit against the defendant to recover damages for the property damage to his yard. Is the plaintiff’s claim likely to be successful?
(B) Yes, because the plaintiff did not realize the
extent of the damage to his yard until after
the conclusion of the first case.
(C) No, because the suit is barred by issue
preclusion.
(D) No, because the plaintiff is barred by
claim preclusion from bringing the second
lawsuit.
(D) The plaintiff’s claim is not likely to be successful because it is barred by claim preclusion principles.
Claim preclusion requires that:
(i) a valid, final judgment on the merits was entered in the first case;
(ii) the cases were brought by the same claimant against the same defendant; and
(iii) the same cause of action is involved in the later lawsuit.
Generally, a claimant is required to assert all causes of action arising out of the same transaction or occurrence that is the subject matter of the claim.
Here, the first case was resolved by a valid, final judgment on the merits. Both cases involve the same claimant, same defendant, and claims arising from the same transaction or occurrence. The plaintiff should have sought damages for his yard in the first lawsuit because the second lawsuit is barred by claim preclusion.
(B) is incorrect because it is irrelevant when the
plaintiff realized the extent of the damage to his yard.
(C) is incorrect because issue preclusion
involves binding a party in a different cause of action as to certain issues that were litigated in the first action. Since the same cause of action is involved here, claim preclusion is appropriate.
A patient properly sued her doctor for
medical malpractice in federal court. Neither
party requested a jury trial. Following witness
testimony from both sides, the judge was not
convinced the doctor breached the applicable
standard of care. Over the plaintiff’s objection
that she should be allowed to present
evidence on proximate causation and damages,
and without hearing any evidence on proximate
causation or damages, the judge entered
judgment for the doctor, stating his findings of
fact and conclusions of law orally on the record.
Has the judge committed reversible error?
(B) Yes, because the judge did not state his
findings of fact and conclusions of law in
writing on the record.
(C) No, because the judge’s findings of fact and
conclusions of law may not be disturbed on
appeal.
(D) No, because findings of fact and conclusions
of law may be orally stated on the
record.
(D) The judge did not commit reversible error.
In a case tried before a judge, once a party has been fully heard on an issue of fact, the judge may enter judgment on partial findings where that issue would dispose of the case.
Here, the patient’s inability to prove that the doctor breached the applicable standard of care would be fatal to her case, and thus the judge did not err when he entered judgment once that became clear. (Note that a judge may continue hearing evidence; whether to do so is a discretionary call.) Thus, (D) is correct and (A) is incorrect.
(B) is incorrect because the judge may issue findings of fact and conclusions of law orally on the record.
(C ) is an incorrect statement of the law.
An appellate court may overturn the judge’s findings of fact on appeal, although the judge will be given considerable discretion. (A clearly erroneous standard is applied.) Purely legal aspects of the case are reviewed de novo.
A plaintiff filed a tort action against a defendant
in federal district court. The defendant filed
no pre-answer motions and proceeded to file
and serve his answer, responding to the merits
of the plaintiff’s complaint. Three months later,
after discovery had begun, the defendant filed a
motion for judgment on the pleadings, asserting
as defenses lack of personal jurisdiction, lack of
subject matter jurisdiction, and failure to state a
claim upon which relief may be granted.
Which of these three defenses, if any, were
timely raised?
(A) Only the subject matter jurisdiction defense
was timely raised, because the defendant
waived the personal jurisdiction and failure
to state a claim defenses by not asserting
them in his answer.
(B) Only the defenses of subject matter jurisdiction and personal jurisdiction were timely
raised, because the defendant waived the
defense of the plaintiff’s failure to state a
claim by not asserting that defense in his
answer.
(C) Only the defenses of subject matter jurisdiction and failure to state a claim were
timely raised, because the defendant waived
the personal jurisdiction defense by not
asserting that defense in his answer.
(D) All three of these defenses were timely
raised.
(C) The defenses of subject matter jurisdiction and failure to state a claim were timely asserted.
The lack of subject matter jurisdiction may be raised at any time.
The defense of failure to state a claim upon which relief can be granted can be asserted in
a pre-answer motion,
any pleading,
a motion for judgment on the pleadings, or
at trial.
Because the defendant asserted this defense in a
motion for judgment on the pleadings, it was timely asserted. Hence, (A) and (B) are incorrect.
A defendant must object to lack of personal jurisdiction in a pre-answer motion or the answer. If the defendant does not, the objection is waived.
Because the defendant here did not assert the defense of lack of personal jurisdiction in his answer or any pre-answer motion, he waived the defense. Therefore, the personal jurisdiction defense was not timely asserted. Hence, (B) and (D) are incorrect.
An investor and a chef agreed to open a
restaurant. They entered into a contract in which
the investor agreed to provide the funding and
the chef agreed to operate the restaurant. When
the investor failed to provide the agreed funding,
the chef filed a breach of contract action against
the investor in a federal district court, seeking
$150,000 in damages. The investor is a citizen
of State A. The chef is a citizen of a foreign
country, but he was admitted into the United
States for permanent residency and is now
domiciled in State A.
Does the federal court have subject matter
jurisdiction over the action?
(A) Yes, because the claim is between a citizen
of a state and a citizen of a foreign country
and the amount in controversy exceeds
$75,000.
(B) Yes, because the action involves an international
transaction.
(C) No, because federal courts do not have
jurisdiction over claims asserted by citizens
of foreign countries unless the claim arises
under federal law.
(D) No, because jurisdiction is withdrawn when
the action is between citizens of a U.S.
state and foreign citizens who are lawfully
admitted for permanent residence in the
U.S. and are domiciled in the same state.
(D) The court does not have subject matter jurisdiction. Provided the amount in controversy exceeds $75,000, the diversity statute authorizes jurisdiction over a civil action between citizens of a U.S. state and citizens of a foreign state, except that jurisdiction is withdrawn if the action is between citizens of a U.S. state and citizens of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same U.S. state.
Here, the investor is a citizen of State A. The chef has been admitted to the United States for permanent residence, and he is domiciled in State A. Because the investor and chef share domicile in State A, jurisdiction is withdrawn.
A pedestrian was injured in a car accident
involving two cars. The pedestrian filed a negligence action in federal district court against the irst driver, seeking $100,000 in damages. The
pedestrian is a citizen of State A and the first
driver is a citizen of State B. The first driver
then filed a third-party claim against the second
driver, claiming that the second driver is responsible for half of the harm caused to the pedestrian and seeking to recover half of any liability the first driver is found to have to the pedestrian. The second driver is a citizen of State A. Does the federal court have subject matter
jurisdiction over the third-party claim asserted
by the first driver against the second driver?
(A) Yes, because the court has supplemental
jurisdiction over the third-party claim.
(C) No, because the amount in controversy in
the third-party claim is too small.
(A) The court has supplemental jurisdiction over the third-party claim.
Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff must be a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. In the instant case, the case is properly in federal court because diversity jurisdiction exists for the underlying claim (i.e., the claim by the pedestrian against the first driver), given that the pedestrian is from State A, the first driver is from State B, and the amount in controversy is $100,000.
The third-party indemnity claim, however, cannot invoke diversity jurisdiction, even though the first driver is from State B and the second driver is from State A, because the amount claimed is $50,000.
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. (Essentially,
this means that the supplemental claim must arise from the same common nucleus of operative fact as the claim invoking federal subject matter jurisdiction.) In the instant case, the claims of pedestrian (the underlying claim) vs. first driver and of first driver vs. second driver (the indemnity claim) are derived from the same accident, and thus both are derived from the same common nucleus of operative fact.
There are restrictions on the use of supplemental jurisdiction when the use of supplemental jurisdiction would be contrary to diversity jurisdiction. In terms of third-party
practice, claims by a plaintiff against an impleaded party may not use supplemental jurisdiction to circumvent the diversity statute. However, claims by a defendant are not listed among the restrictions; thus, supplemental jurisdiction is available to a defendant (third-party plaintiff) against a third-party defendant. Therefore, the first driver may use supplemental jurisdiction to have his claim against the second driver heard in federal court. (This would be true even if they were from the same state, so long as the claim was a true indemnity claim.) As a result, (A) is correct, and (C) incorrect.
A company refused to hire a woman based
on her religious beliefs in violation of federal
civil rights laws. The company was incorporated
in State A, and its principal place of business was in State B. The events relating to the woman’s claim occurred in State B. Thereafter, the woman found employment in State A. She moved to State A and commenced an action against the company in the federal court for State A. She hired a process server to serve the
company, who served the company’s treasurer at
its offices in State B. State A and B each authorize service of process on corporations only by personal delivery of the summons and complaint on its president, vice president, or secretary. The company has timely moved to dismiss the complaint based on improper venue and improper service of process.
How should the court decide the motion?
(B) The court should grant the motion because
service of process is improper.
(D) The court should deny the motion.
(D) Service on the treasurer was effective service.
Under the Federal Rules, a corporation may be
served by serving any corporate officer or managing or general agent. Alternatively, service may be made under state rules or by mail under the waiver of service provision.
Here, service is proper because the treasurer, an officer of the corporation, was served. Service need not comply with state law as well. Service in accordance with state law is an authorized alternative to the service methods specified in the Rules.
Venue is proper because the corporation resides there. Venue is proper in
(i) a judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located;
(ii) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred or in which a substantial part of property at issue is located; or
(iii) if there is no district anywhere in the United States which satisfies (i) or (ii), a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.
A corporate defendant resides in any federal judicial district in which it is subject to the court’s personal jurisdiction with respect to the civil action in question.
Here, for venue purposes, the company resides in the federal district of State A because it would be subject to that district court’s personal jurisdiction in this action. Specifically, it would be subject to the court’s general personal jurisdiction because it was incorporated in State A, meaning it could be sued in State A on any claim, including the civil action in question, which arose from acts in State B.
Three drivers were involved in a three-car
accident in a city in the Middle District of State
A. One of the drivers was severely injured and
intends, in good faith, to file a negligence action
seeking $500,000 in damages against the other
two in federal court. The plaintiff is a citizen of
State A and resides in the Middle District. One
defendant is a citizen of State B and resides in
its Northern District. The other defendant is a
citizen and resident of State C, a single district
state. At the time of the accident, the State C
defendant was staying in a State A hotel for
two months while consulting on a construction
project.
In what district or districts is venue proper?
(A) The Middle District of State A only.
(B) The Northern District of State B and the
District of State C only.
(C) The Middle District of State A, the
Northern District of State B, and the
District of State C.
(D) None; the action may not be maintained in
federal court because federal subject matter
jurisdiction does not exist.
(A) Venue is proper in the Middle District of State A only.
Federal venue in civil actions is proper in
(i) the district where any defendant resides, if all defendants are residents of the state in which the
district is located; and
(ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred.
Here, the defendants do not reside in the same state. Therefore, venue cannot be based on the residence of the defendants. However, the accident occurred in the Middle District of State A, which is a proper venue under prong (ii).
A citizen of State A filed a complaint alleging
negligence by two parties, both of whom reside
in State B. The complaint was filed in the United
States District Court of State B. However, the
accident took place in State D, the plaintiff was
treated by an emergency room physician in
State D, and all of the witnesses reside in State
D. Two months after they filed their respective
answers, which did not address any problems
with personal jurisdiction or venue, the defendants
filed a joint motion to transfer the case to
the District of State D.
May the court grant the motion?
(A) No, because the defendants have waived
any issue as to venue by not raising the issue
of venue in the answer.
(D) Yes, because transferring the case to the
District of State D could be “in the interests
of justice.”
(D) The court could grant the motion.
Pursuant to Rule 12(b), improper venue must be raised in a defendant’s first response—either in its timely motion to dismiss before the answer or in the answer, whichever is first.
Here, though, venue was initially proper because the defendants resided in State B. Rather, the issue is whether the court may transfer the case from one proper venue to another. Such a transfer has no strict time limit. Rather, transfer is left to the discretion of the trial judge, and the judge may refuse transfer where the case has been pending for some time and would work a prejudice to one of the parties. Two months is likely not a sufficient period to prevent transfer of the case. Thus, (D) is correct.
(A) is incorrect because, as explained, transfer of venue in the interests of justice does not fall under the “first pleading or motion” rule.
A homeowner from State A hired a contractor
from State B to build a vacation home for her in
State C. The parties signed the contract in State
A. The contractor breached the contract, and
the homeowner sued the contractor in a court
of State A, seeking damages of $100,000. The
contractor removed the case to the federal court
for State A. The homeowner promptly moved
to remand the case to state court, arguing that
venue was improper.
Which of the following facts is most relevant
to the court’s decision on the homeowner’s
motion?
(A) The contract was signed in State A.
(B) The contractor resides in State B.
(C) The homeowner commenced the action in a
State A court.
(D) The vacation home was to be built in State
C.
(C) The commencement of the action in State A is most relevant.
When a case is removed from state court to federal court, venue is set in the federal district court that embraces the state court in which the action was pending, making the federal district court of State A the only appropriate venue choice. Thus, (C) is the correct answer because the most (indeed, only) relevant fact is the
fact that the action was commenced in a court of State A. Unlike cases commenced in federal
court, in cases removed to federal court, the residence of the defendant contractor (answer choice (B)) and the place where a substantial part of events relating to the claim occurred (answer
choices (A) and (D)) are irrelevant.
A State A citizen and a State B citizen were
in a car accident in State C. The State A citizen
filed a negligence action against the State B
citizen in a State C state court, seeking $500,000
in damages. If the State B citizen wishes to remove the action to federal district court, in which federal district should the State B citizen file a notice of removal?
(A) In either the district in State C in which the
accident took place or the district in State B
in which the State B citizen resides.
(C) In only the district in State C in which the
State C state court is located.
(C) The notice of removal should be filed in the district in State C in which the State C court is
located.
The federal removal statute provides that
_the notice of removal should be filed in the
federal district court for the district that geographically encompasses the state court from which the action is being removed._Thereafter, copies must be sent to the parties and filed with the applicable state court.
Thus, (A), (B), and (D) are incorrect. (A) describes the general venue rule—i.e., an action may be filed in the judicial district in which any defendant resides (if they are all from the same state) or in which a substantial part of the events took place—for actions filed originally in federal court.
While making deliveries with a company van,
an employee of a bakery collided with a bicycle.
To recover for his extensive injuries, the cyclist
sued the employee in the appropriate federal
court. The court granted summary judgment in
favor of the cyclist, finding that the employee’s
negligence was the sole cause of the collision.
Thereafter, the cyclist died. The bakery commenced an action against the cyclist’s estate
for damage to the van. The cyclist’s estate moved
to dismiss the bakery’s complaint, based on the
finding of negligence in the prior action. If the court denies the motion, what is the most likely reason?
(A) The bakery was not a party to the prior action.
(B) The cyclist’s estate was not a party to the
first action.
(C) The cyclist’s action against the employee
was not fully litigated.
(A) Generally, a party may assert issue preclusion offensively if
(i) the prior action ended in a final judgment;
(ii) the issue has been actually litigated and determined;
(iii) the issue was essential to the judgment;
(iv) the party to be bound by the prior judgment was a party to the prior action or in privity with a party to the prior action; and
(v) the party asserting issue preclusion was
a party to (or in privity with a party) to the prior action or, if not, is asserting issue preclusion
under circumstances that are not unfair or inequitable.
Here, the fourth element is missing. The
bakery was not a party to the prior action and therefore the cyclist’s estate may not assert issue
preclusion against it.
(B) is incorrect because the cyclist and the cyclist’s estate are in privity. Therefore, issue preclusion may be asserted by it.
(C) is incorrect because a case is fully litigated
when it is resolved by the grant of a motion for summary judgment.
A company manufactured and sold a product called “True Glue.” An inventor brought an action in federal court against the company, alleging that the product infringed a patent owned by him. The company denied the allegations of the inventor’s complaint. In addition, it asserted a counterclaim against the inventor for breach of contract, based on a transaction between them unrelated to the inventor’s claim.
After the completion of discovery, the company
moved for summary judgment dismissing the
inventor’s claim. The court granted the motion,
thus leaving only the company’s counterclaim for
breach of contract to be adjudicated.
Which of the following statements most
accurately describes the inventor’s right to
appeal the court’s grant of the motion for
summary judgment?
(A) The inventor may immediately appeal the
judgment because summary judgment is a
final judgment.
(D) The inventor may not immediately appeal
the judgment unless the court provides that
it is a final judgment and expressly determines
that there is no just reason for delay.
(D) _When a court grants summary judgment on some but not all of the claims in an action, the
court’s order is not final and thus not appealable unless the court expressly determines that there is no just reason to delay entry of judgment._Unless the trial judge makes that express determination, its order determining the merits of fewer than all of the claims is not a final judgment and is not appealable. For these reasons,
A woman sued her employer for sexual harassment. At the close of the trial, the
employer made a motion for judgment as a
matter of law, arguing that the woman’s evidence
was insufficient to establish the elements of her
claim. The court denied the motion.
When the jury returned a verdict in favor of
the woman, the employer renewed its motion
for judgment as a matter of law. In addition to
the renewed motion for judgment as a matter of
law, the employer also moved for a new trial,
asserting that the verdict was against the weight
of the evidence. The court denied both motions.
If the employer appeals the denials of both
the renewed motion for a judgment as a matter
of law and the motion for a new trial, what is the
appropriate standard of review?
(A) De novo for the renewed motion for judgment
as a matter of law and abuse of discretion
for the new trial motion.
(B) Clearly erroneous for the renewed motion
for judgment as a matter of law and de novo
for the new trial motion.
(C) Abuse of discretion for both.
(D) De novo for both.
(A) When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs a de novo standard. It does so because the issue is one of law.
In contrast, when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion.
Note that when a renewed motion for judgment
as a matter of law and a motion for a new trial are made in the alternative and the renewed motion
is granted, the court rules hypothetically on the new trial motion so that no remand is required if
the ruling on the judgment as a matter of law is subsequently reversed on appeal.
Jury instructions - obejction
To reserve its right to appeal an error in an instruction given or, a failure to give an instruction, a party must object on the record before the instructions are given.
If adequately preserved, the instructions are reviewed using an abuse of discretion standard.
However, 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.
A passenger sued a limo driver for an injury
the passenger sustained in an accident in State B, and the passenger had the limo driver promptly served with a summons and complaint. Forty days thereafter, with no answer being filed, the passenger requested and was granted an entry of default by the court clerk, and a date for a hearing for a default judgment was set. Notice of the hearing for the default judgment was sent to the limo driver two weeks prior to the hearing.
Assuming that the hearing for the default
judgment has not yet taken place, what is the
limo driver’s best method to get a hearing on the
merits of the case?
(C) Have the entry of the default set aside for
good cause.
(D) Appear at the hearing for a default
judgment.
(C) The limo driver’s best approach is to have the entry of default set aside for good cause.
Although there are no facts to indicate that good cause exists to have the default set aside, having the default vacated before the hearing on the default judgment represents the only method by which the limo driver can get a hearing on the merits of the case. If the limo driver can have the entry of default vacated prior to the hearing for a default judgment, the hearing would not proceed, and the case would proceed as any other case in which no default was entered.
(D) is incorrect. The entry of the default cuts off the defendant’s right to contest the case on the merits. _Although the defendant may appear at the hearing for the default judgment *to contest damages*, he may not contest liability until the entry of default is vacated._
An employee sued her employer in federal court for sexual harassment. The jury returned a verdict in favor of the employer. Three months after the verdict, the employee’s attorney received an anonymous letter stating that a key document presented at trial by the employer had been altered. The employee moved for relief from judgment, alleging that a document presented by her employer at trial had been altered.
Assuming that the employee can show that the
alteration was intentional, how should the court
rule?
(C) Grant the employee’s motion, because fraud and misconduct of an adverse party are proper grounds for relief, and she filed within the appropriate time frame.
(D) Grant the employee’s motion, because fraud
and misconduct of an adverse party are proper grounds for relief, and there is no time limit on such actions.
(C) The court should grant the employee’s motion.
A court may relieve a party from a final judgment or order based on fraud, misrepresentation, or other misconduct of an adverse party, _and such a
motion must be made within a reasonable time not to exceed one year._
Here, the employee filed her motion based on the adverse party altering a document, which amounts to fraudulent misconduct by the adverse party, and she properly filed her motion within a year. Therefore, the court should grant her motion.
(D) is wrong because there is a one-year time limit to file a motion for relief from judgment based on fraud, misrepresentation, or other misconduct of an adverse party. There is no time limit for such a motion if it is based on a clerical mistake, but that is not the ground that applies to this question.
If the defendant has not answered or filed a motion for summary judgment, the plaintiff may dismiss her case by filing a notice of dismissal.
A plaintiff may voluntarily dismiss an action without prejudice only once, so a second voluntary dismissal operates as an adjudication on the merits.
A dismissal by notice is without prejudice unless the plaintiff has previously dismissed any federal or state court action on the same claim, in which case the dismissal by notice operates as an adjudication on the merits.
A party can file a motion for a new trial no later
than …
… 28 days after judgment was entered.
An entry of default may be set aside for “good cause shown.”
Although not specifically required by the Federal Rules, a majority of courts also will require some showing of a meritorious defense.
Interlocutory orders are …
… the rulings that trial judges make during the course of pretrial proceedings and trials that do not completely resolve the case. Therefore, they are not final. As a result, interlocutory orders are typically not immediately reviewable on appeal until a final order is made, unless they meet one of the exceptions permitting an appeal as of right, i.e.:
- orders granting injunctions;
- orders appointing a receiver;
- orders in admiralty cases finding liability but leaving damages to be assessed later;
- patent infringement orders where only an accounting is ordered; and
- orders affecting or changing possession of property.
- The Interlocutory Appeals Act also may permit a review of an interlocutory order, but it is discretionary, and may be available only when (i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and (ii) the court of appeals then agrees to allow the appeal.
- A party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.
A man invited his partner, who resides in
State B, to his mountain cabin in State A to work
on a business project and enjoy a few days of
relaxation. While hiking on the man’s property,
the partner began to climb over a small fence.
The fence broke in half because the wood had
rotted. The partner fell and suffered a broken
leg, which required hospitalization for several
days.
The partner brought a diversity action in State
A federal court against the man for $100,000 in
damages. The man did not know the fence had
rotted, but the dangerous condition would have
been discoverable applying a reasonable person
standard.
State A follows the traditional common law
rules for landowners and possessors of land.
State B has modified these rules by statute
and applies a reasonable person standard to
dangerous conditions on the land.
At trial, the partner argued that the man
should be liable for failing to exercise reasonable
care to inspect the fence and discover the
dangerous condition. The man contended that
he did not breach his duty of reasonable care
under the State A traditional common law rules
because he did not know the wood in the fence
had rotted. Alternatively, the man argued that the
partner was spending a few days of relaxation as
a social guest, and that he owed neither a duty to
inspect nor to repair unknown dangerous conditions
on his property.
The man moved for a judgment as a matter of
law (“JMOL ”), claiming that, applying State A
law, a reasonable jury would not have a legally
sufficient basis to find for the nonmoving party.
However, the judge denied the motion. The jury
returned a verdict for the partner. In response,
the man filed a motion for a renewed JMOL and,
in the alternative, a motion for a new trial.
What is the proper response to these motions
by the trial judge?
(A) Deny both motions, because the moving
party must elect only one of the two motions
following a jury verdict.
(B) Grant the motion for a renewed JMOL and
exercise judicial discretion to disregard the
motion for a new trial.
(C) Grant the motion for a renewed JMOL ,
but rule hypothetically on the new trial
motion in the event the JMOL is reversed
on appeal.
(D) Set aside the verdict and remand the case
for a redetermination of the applicable law.
(C) The proper response by the trial judge is to grant the motion for a renewed JMOL , but rule
hypothetically on the new trial motion in the event the JMOL is reversed on appeal.
A renewed motion for a JMOL is permitted provided the moving party moved for a JMOL at some time during the trial. The moving party is permitted to raise only those issues raised in the initial motion for JMOL.
It is apparent from the facts that the jury did not apply traditional common law rules in arriving at its verdict, which the federal court in State A would be required to follow.
Because of this error, the trial judge should grant the motion for a renewed JMOL. Furthermore, when a renewed motion for a JMOL and a motion for a new trial are made in the alternative, and the renewed motion is granted, the court must rule hypothetically on the new trial motion so that no remand is required if the ruling on the JMOL is subsequently reversed on appeal.
A bar prep company discovered that its
copyrighted content was being used in an online simulated exam that its competitor was administering in a few days. The company filed
a petition for an ex parte order to direct the competitor to immediately remove that content
from its website. The company submitted an
affidavit specifying why immediate and irreparable injury will result if the exam is administered, and offered to provide security for any costs or damages incurred by the competitor if it was determined that the order was wrongfully
issued. Should the court issue the order?
(A) Yes, because the company submitted an affidavit with specific facts showing immediate
and irreparable injury.
(D) No, because the company has not provided
sufficient certification for obtaining an ex parte order.
(D) The court should not issue the ex parte order.
A temporary restraining order may be granted by
a court when it is necessary to prevent irreparable injury to a party, and the injury will result before a preliminary injunction hearing can be held.
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.
Here, the company alleged irreparable injury and offered to provide security, _but nothing in the
facts indicates that it certified efforts to give notice to the competitor or why notice should not
be required._The facts do not establish that it is impossible to provide notice to the competitor
before a restraining order is issued.
(A) is incorrect because the company’s affidavit is not enough to justify the issuance of an ex parte order, as discussed above.
A defendant against whom a default is entered loses the right to contest liability. However, …. must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages.
If the defendant has “appeared,” even
though he has not answered, he must be notified of the request for a default judgment by ….
the amount of damages
… first-class mail at least seven days before the hearing on the application for a default judgment.
Appearance includes any actual formal appearance before the court and any other action that clearly indicates that the defendant intends to contest the case on the merits (e.g., the defendant’s continued settlement negotiations).
Furthermore, an appearance cuts off the clerk’s ability to enter a default judgment.
An elderly woman entered into a contract with
a company in the business of providing home
care services. Believing that she had been duped
by representatives of the company, the woman
commenced an action in federal court, properly
based on diversity, seeking rescission of the
contract. The company answered, denying the
principal allegations of the woman’s complaint
and asserting a counterclaim against the woman
for breach of contract. In addition, the company
timely served a demand for a jury trial. The
woman did not.
Which statement best describes the roles of
the judge and jury as finders of fact in the trial of
the parties’ claims?
(A) The judge will first determine the issues
relating to the woman’s claim for rescission,
and if it concludes the rescission is
not warranted, the jury will determine the
issues relating to the company’s breach-ofcontract
counterclaim.
(B) The jury will first determine the issues
relating to the breach of contract claim, and
the judge will determine the issues relating
to the rescission claim that have not already
been resolved by the jury.
(C) The jury will act as the sole finder of fact.
(D) The judge may either act as the sole finder
of fact on both the claim and the counterclaim,
or allow an advisory jury to try the
issues relating to the company’s counterclaim.
(B) If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court.
The jury’s finding on fact issues will bind the court in the equitable claim.
(A) is incorrect because all fact issues relating to the company’s legal claim must first be determined by the jury. Only then may the judge try the woman’s equitable claim.
(C) and (D) are both incorrect because neither the jury nor judge acts as the sole finder of fact when the case has legal claims and equitable claims, and a jury has been demanded on the legal claims.
A utility company constructed a building costing approximately $2 million that encroached on a rancher’s property. The rancher is suing the company in federal district court to force the company to remove the office building. In the same action, the rancher is asking for $200,000 in damages incurred because of the trespass. The court has diversity of citizenship jurisdiction. Is the company entitled to a jury trial?
(A) Yes, for all issues.
(B) Yes, but only for issues involving the
trespass action.
(C) Yes, but only for issues involving the action to require the company to move its building.
(D) No, because the equitable issue predominates.
(B) The company is entitled to a jury trial only for issues involving the trespass action.
In this case, both legal and equitable issues exist. The defendant is entitled to a jury trial on the legal issues in the case, even though the equitable issue of whether an injunction mandating removal of the building should be issued clearly predominates.
Hence, (D) is incorrect. (A) and (C) are incorrect
because, as stated, the issue regarding removal of the building is equitable, and thus there is no
right to answer it to a jury.
A restaurant owner properly sued a food
supplier in federal district court for breach of
contract and timely demanded a jury trial. The
complaint asserted both legal and equitable
claims.
Which of the following statements correctly
states the proper order for trying both claims?
(A) All legal claims should be tried first by the
jury.
(D) It is up to the federal district court judge’s
discretion which claim will be tried first.
(A) If legal and equitable claims are joined in one action involving common fact issues, the legal
claim should be tried first to the jury and then the equitable claim to the court (the jury’s finding
on fact issues will bind the court in the equitable claim).
(D) is wrong because the Supreme Court has held that if legal and equitable claims are joined in one action involving common fact issues, the legal claim should be tried first.
A gas station owner properly filed a breach of
a noncompete clause in an employment contract
case in federal court against a former manager,
who began building a similar gas station across
the street. The owner’s complaint requested
money damages and an injunction to stop the
construction. The former manager wants a jury trial, but the gas station owner prefers that the issue be litigated before the judge. Can the former manager demand a jury trial for both claims?
(A) Yes, because the Seventh Amendment gives
both the plaintiff and the defendant the
right to demand a jury trial in civil actions.
(D) No, because, while the Seventh Amendment
gives both the plaintiff and defendant
the right to demand a jury trial in civil
actions, when a case presents both legal and
equitable claims, the right is only preserved
for all legal claims, not equitable claims.
(D) The former manager may not demand a jury trial for both claims.
The Seventh Amendment preserves the right to a jury trial for both the plaintiff and defendant for civil actions in federal court of facts in all “suits of common law” where the amount in controversy exceeds $20.
The determination is historical and turns initially on whether the claim or relief was available at law or in equity in 1791. However, the Supreme Court has demonstrated a clear preference for jury trials in doubtful cases and has held that, if damages are claimed as part of an action seeking an injunction, the defendant cannot be denied a jury on the damages issues on the ground that they are “incidental” to the equitable relief. As such, when a case presents both legal and equitable claims, the right to a jury is preserved for all legal claims, but not for equitable claims. Instead, the legal claim should be tried first to the jury, and the equitable claim will go to the court (the jury’s finding on fact issues will bind the court in the equitable claims).
Here, the call of the question asks if the former manager can demand a jury trial for both claims. Under the Seventh Amendment, he only has a right to a jury trial on the legal claim for money damages, not the equitable claim for the injunction. Instead, the court will hear the equitable claim for the injunction, but will be bound by any of the jury’s factual decisions that relate to the equitable claim.
(A) is wrong because, although it is a correct statement of law, it is incomplete and does not directly answer the question asked. Both plaintiffs and defendants do have a right to demand a jury trial for civil actions in federal court, but in cases asserting both legal and equitable claims, the right to trial extends only to all issues that are relevant to the legal claims. Here, since the injunction is an equitable claim, the former manager does not have a right to a jury to review that claim.
A man left a tavern after consuming several
alcoholic drinks and then attempted to drive
home. On the way home, he was involved in
an accident with another driver, injuring him
severely.
The injured driver brought a negligence
action against the tavern owner and demanded
a jury trial. At trial, the driver called several
witnesses to testify that the tavern owner served
the man alcohol after it became apparent that
the man was intoxicated, but the tavern owner
refuted these assertions during his testimony. At
the appropriate time, both parties moved for a
judgment as a matter of law (“JMOL ”), and both
motions were denied. The jury then returned a
verdict for the driver.
If the tavern owner seeks to challenge the
jury verdict, what would be the proper and best
course of action?
(A) File a notice of appeal.
(B) File a motion for a new trial.
(C) File a renewed motion for a JMOL .
(D) File both a motion for a new trial and a
renewed motion for a JMOL .
(D) The proper course of action for the tavern owner would be to file a renewed motion for a JMOL and a motion for a new trial.
The trial judge will then rule on both motions, allowing the appellate court to review both motions on appeal. And note that a renewed motion for JMOL would be permitted since the tavern owner initially sought a JMOL at trial.
(C) is incorrect because a party should move for both a new trial and a motion for judgment
as a matter of law in order to preserve both for appeal.
For statute of limitations
purposes, an amendment to a pleading that arises from the same conduct, transaction, or
occurrence that was set forth (or was attempted to be set forth) in the original pleading generally
is deemed filed …
…. on the date that the original pleading was filed.
Under Rule 14, a defendant may assert a third-party claim against “a nonparty who is or may be liable to it for all or part of the claim against it.” In other words, a third-party claim must be …
… a derivative claim; the third-party plaintiff must be seeking indemnification or contribution from the third-party defendant.
i.e.
Where the gas worker’s claim is not that the electrician must indemnify him or that the electrician is a joint tortfeasor who may be jointly liable under principles of contribution; rather, the gas worker is alleging that he is not liable and that the electrician is; the claim is not derivative, and it is not properly asserted as a third-party claim under Rule 14.
A defendant may serve a third-party complaint
as of right within … days of serving his original answer.
14
