Civil Procedure AMP - Pretrial Matters

Question 1

A complaint must include a short statement of the grounds for the court’s jurisdiction, a short statement of the claim showing that the claimant is entitled to relief, and:

A A demand for judgment for relief (which may be in the alternative)

B A short statement setting forth the damages (monetary and otherwise) being requested

C A short statement setting forth times that the pleader is available for a pretrial meeting

D A demand for judgment for relief (which may not be in the alternative)

Answer 1

A

A complaint must include a short statement of the grounds for the court’s jurisdiction, a short statement of the claim showing that the claimant is entitled to relief, and a demand for judgment for relief (which may be in the alternative). The choice providing that the demand for relief may not be in the alternative is incorrect because alternative reasons for relief may be given. A short statement setting forth times that the pleader is available for a pretrial meeting need not be listed in a complaint. A short statement setting forth the damages (monetary and otherwise) being requested is incorrect because that is not one of the requirements. Note that in recent years, the Supreme Court has added a requirement that the plaintiff state facts supporting a plausible (not just possible) claim. J0709A Additional Learninga

Question 2

If a defendant waives service of process, she:

A Waives the right to object to venue but not personal jurisdiction

B Waives the right to object to personal jurisdiction but not venue

C Waives the right to object to venue and personal jurisdiction

D Does not waive the right to object to venue and personal jurisdiction

Answer 2

D

If a defendant waives service of process, she does not waive the right to object to venue and personal jurisdiction. (An objection to subject matter jurisdiction may be raised at any time, even on appeal.) Therefore, it is not correct that she waives the right to object to venue and personal jurisdiction. Nor is it correct that she waives the right to object to venue but not personal jurisdiction or waives the right to object to personal jurisdiction but not venue. J0704 Additional Learning

Question 3

A party to an action may set forth as many claims or defenses as he may have in his pleadings:

A But the claims and defenses must be consistent with one another

B And the defenses need not be consistent with each other, but the claims must be

C And the claims need not be consistent with one another, but the defenses must be

D And the claims and defenses need not be consistent with one another

Answer 3

D

A party to an action may set forth as many claims or defenses as he may have in his pleadings, and the claims and defenses need not be consistent with one another. Therefore, choices requiring that the claims or the defenses, or both the claims and defenses must be consistent with one another are incorrect. J0716A Additional Learning

Question 4

Which of the following requirements must be met in order for named representatives to sue on behalf of a class?

A Questions of law or fact that are common to the class predominate over individual issues

B There must be questions of law or fact that are common to the class

C Separate actions by class members would create a risk of inconsistent results

Answer 4

B

The answer choice that there must be questions of law or fact that are common to the class is the only one that lists a requirement that must be met. Named representatives will be permitted to sue on behalf of a class if: (i) The class is so numerous that joinder of all members is impracticable; (ii) There are questions of law or fact common to the class; (iii) The named parties’ interests are typical of the class; (iv) The named representatives will ensure the fair and adequate representation of the interests of absent members of the class; and (v) The action meets the definition of any of the following three types of class actions found in Rule 23(b): i. Separate actions by class members would create a risk of inconsistent results or, as a practical matter, would impair the interests of other absent members of the class; or ii. A defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; or iii. There are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication. Note that that there are three factors listed in item (v), and meeting just one of those factors is sufficient to satisfy (v). The factors stated by the other answer choices (questions of law or fact must be common to the class and predominate over individual issues and separate actions by class members would create a risk of inconsistent results) should be taken into account, but a class action might still go forward if these factors are not met. J0726B Additional Learning

Question 5

Rule 11 sanctions may consist of _____________ and may be imposed on _______________.

A Nonmonetary directives only; attorneys or law firms (but not parties)
Incorrect

B Nonmonetary directives only; parties, attorneys, or law firms

C Monetary penalties or nonmonetary directives; attorneys or law firms (but not parties)

D Monetary penalties or nonmonetary directives; parties, attorneys, or law firms

Answer 5

D

Rule 11 sanctions may consist of monetary penalties or nonmonetary directives and may be imposed on parties, attorneys, or law firms that are responsible for the violation. Absent exceptional circumstances, a law firm is responsible for the conduct of its employees. Therefore, answer choices that include “nonmonetary directives only” and “attorneys or law firms (but not parties)” are incorrect. Note that the court has discretion to impose sanctions “limited to what is sufficient to deter repetition of such conduct.” J0722A Additional Learning

Question 6

Notice to class members of dismissal or settlement of a class action is required unless:

A It is not a “common question” type of class action

B It is a “common question” type of class action

C The judgment will not bind the class

Answer 6

C

Notice of dismissal or settlement of a class action is required in all class actions unless the judgment will not bind the class. Such notice is required regardless of whether it is a “common question” type of class action or not a “common question” type. Remember, “common question” class actions are ones where there are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication. This is the only type of class action where class members may opt out of the class. J0730 Additional Learning

Question 7

In a federal question case, the action is always deemed commenced for statute of limitations purposes when:

A Process is served on the opposing party

B The complaint is filed with the court

C The complaint is filed, if service of process occurs within a specified timeframe

D Either the complaint is filed or process is served on the opposing party, depending on the law of the state in which the federal court sits

Answer 7

B

In a federal question case, the action is deemed commenced for statute of limitations purposes when the complaint is filed with the court. In diversity cases (not federal question cases), the Supreme Court has held that the state rule for determining when the action is commenced applies. Thus, depending on the state rule, an action may be commenced for statute of limitations purposes when process is served on the opposing party. However, the federal rule (as described above) applies in federal question cases. The choice providing commencement when either the complaint is filed or process is served on the opposing party, depending on the law of state in which the federal court sits is incorrect; this essentially states the rule when subject matter jurisdiction is based on diversity of citizenship. The choice providing for commencement when the complaint is filed, if service of process occurs within a specified timeframe is incorrect. Some states have such dual provisions, in that the date that the complaint is filed is used when service occurs within a certain timeframe after filing, but if that timeframe for service is exceeded, the date of service is used. But that is not the rule in federal question cases. J0701 Additional Learning

Question 8

A party may bring an interpleader action based on federal question jurisdiction under:

A The Federal Interpleader Act only

B Rule 22 or the Federal Interpleader Act

C Rule 22 only

Answer 8

B

A party may bring a “federal question” based interpleader action under Rule 22 or the Federal Interpleader Act. Therefore, choices providing for Rule 22 only and the Federal Interpleader Act only are incorrect. Neither Rule 22 nor the Federal Interpleader Act is specific to certain types of cases. Rule 22 interpleader actions have subject matter jurisdiction under the usual rules (the action has to be either a “federal question” action or there must be complete diversity between the stakeholder and the claimants and more than $75,000 in controversy). Under the Federal Interpleader Act, jurisdictional requirements are easier to meet. It permits jurisdiction where the amount in controversy is $500 or more and where there is diversity between any two contending claimants. Venue lies where any claimant resides, and process may be served anywhere in the United States under the statute (but not under Rule 22). The plaintiff stakeholder must deposit the amount in controversy (or a bond) with the court. J0733 Additional Learning

Question 9

In an action based on diversity jurisdiction, may a defendant implead a third-party defendant for an indemnity claim when the third party is from the same state as the defendant?

A No, the defendant cannot implead the third party here because doing so destroys diversity jurisdiction

B Yes, the defendant can implead the third party under diversity jurisdiction

C Yes, the defendant can implead the third party under supplemental jurisdiction

D No, a defendant never can use supplemental jurisdiction when impleading a third party

Answer 9

C

A defendant may implead a third-party defendant who is from the same state into an action that is based on diversity jurisdiction by impleading the third party under supplemental jurisdiction. An indemnity claim automatically meets the “common nucleus of operative fact” requirement for ancillary jurisdiction. The defendant cannot implead the third-party defendant under the typical rules of diversity jurisdiction, as they are citizens of the same state. Impleading is permitted via ancillary jurisdiction, so to state that the defendant cannot implead the third party here because doing so destroys diversity jurisdiction is incorrect. Diversity remains between the plaintiff and defendant. The answer that a defendant never can use supplemental jurisdiction when impleading a third party is an incorrect statement of the law. J0735A Additional Learning

Question 10

In order for a diversity suit to be heard, the amount in controversy must exceed $75,000.
A class action founded on diversity jurisdiction may go forward as long as \_\_\_\_\_\_\_ exceeds $75,000.

A Each unnamed class member’s claim

B The named representative’s claim and each class member’s claim

C All named class members’ claims

D Any named class representative’s claim

Answer 10

D

A class action founded on diversity jurisdiction may go forward as long as any named class representative’s claim exceeds $75,000. Therefore, it is not correct that each unnamed class member’s claim or the representative’s claim and each class member’s claim must exceed $75,000. It is also incorrect that all named class members’ claims must exceed $75,000. Only one such claim needs to do so. J0729A Additional Learning

Question 11

Parties who are injured in car accidents may join in the same action as plaintiffs under the permissive joinder rule because:

A The plaintiffs’ claims arise out of the same occurrence

B The same question of law or fact (defendant’s negligence) is common to all of the plaintiffs

C The plaintiffs’ claims arise out of the same occurrence, the same question of law or fact (defendant’s negligence) is common to all of the plaintiffs, and the plaintiffs are requesting similar damages

D The plaintiffs’ claims arise out of the same occurrence and a question of law or fact (defendant’s negligence) is common to all of the plaintiffs

Answer 11

D

Parties injured in car accidents may join in the same action as plaintiffs under the permissive joinder rule because the plaintiffs’ claims arise out of the same occurrence and a question of law or fact (defendant’s negligence) is common to all of the plaintiffs. The general rule is that parties may join an action as plaintiffs or be joined as defendants whenever some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transaction, and there is a question of fact or law common to all the parties. Both conditions must be met for a permissive joinder, so answers that state only that the plaintiffs’ claims arise out of the same occurrence or that the same question of law or fact (defendant’s negligence) is common to all of the plaintiffs are insufficient. The answer choice that adds a condition that the plaintiffs are requesting similar damages is incorrect because this condition is not required for permissive joinder; the issue of damages would be tried individually for each plaintiff. J0724A Additional Learning

Question 12

All members of a class in a class action suit are always bound by the judgment rendered in the class action:

A Unless it is an “avoiding inconsistent results” type of class action and they have opted out

B In all circumstances

C Unless it is a “common question” type of class action and they have opted out

Answer 12

C

All members of a class in a class action suit are always bound by the judgment rendered in the class action unless it is a “common question” type of class action and they have opted out. Therefore, to say that class members are bound in all circumstances is incorrect. Only in the “common question” type of class action can potential class members choose to opt out. Therefore, it is not correct that class members are bound unless it is an “avoiding inconsistent results” type of class action and they have opted out. J0727A Additional Learning

Question 13

A supplemental pleading is:

A An amendment to a pleading

B A pleading relating to matters occurring after the date of an original pleading

C A pleading by a party brought in via amendment to an earlier pleading

Answer 13

B

A supplemental pleading is a pleading relating to matters occurring after the date of an original pleading. The permission of the court, upon motion, is required. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or a defense. An amendment to a pleading and a pleading by a party brought in via amendment to an earlier pleading are both, therefore, incorrect. J0720A Additional Learning

Question 14

Following the _______, an order is entered that acts as a blueprint for the trial, usually listing witnesses to be called, evidence to be presented, and factual and legal issues that need resolving.

A Initial conference

B Final pretrial conference

C Scheduling conference

Answer 14

B

Following the final pretrial conference, an order is entered that acts as a blueprint for the trial, usually listing witnesses to be called, evidence to be presented, and factual and legal issues that need resolving. Typically following a scheduling conference, an order is entered that limits the time for joinder, motions and discovery. It may also include dates for pretrial conferences, trial date and any other appropriate matters. In the initial conference, the parties consider their claims and defenses, the possibility of settlement, initial disclosures and a discovery plan. Within 14 days thereafter, they must submit a proposed discovery plan to the court. J0736A Additional Learning

Question 15

When an applicant wants to intervene in an action because she has an interest in the property or transaction that is the subject matter of the action, and the disposition of the action may impair her ability to protect that interest, such an intervention is called:

A A permissive intervention

B Impleading

C An intervention of right

Answer 15

C

When an applicant wants to intervene in an action because she has an interest in the property or transaction that is the subject matter of the action, and the disposition of the action may impair her ability to protect that interest, such an intervention is called an intervention of right. A permissive intervention is available when the applicant’s claim or defense and the main action have a question of fact or law in common. No direct personal or pecuniary interest is required, and permissive intervention is in the discretion of the court. Impleading is when a defending party brings in a third party defendant. J0734 Additional Learning

Question 16

Following a default by a defendant, the clerk may sign and enter a judgment for the amount set forth in the plaintiff’s affidavit if the defaulted defendant is not an infant or an incompetent and:

A The plaintiff’s claim is for a sum certain, the default was entered because the defendant failed to appear, and the defendant’s failure to appear was in bad faith

B The plaintiff’s claim is for a sum certain and the default was entered because the defendant failed to appear

C The defendant failed to appear, and the defendant’s failure to appear was in bad faith

D The defendant failed to appear

Answer 16

B

Following a default by a defendant, the clerk may sign and enter a judgment for the amount set forth in Plaintiff’s affidavit if the defaulted defendant is not an infant or an incompetent and plaintiff’s claim is for a sum certain and the default was entered because the defendant failed to appear. The defendant failing to appear is not sufficient; the claim must be for a sum certain. There is no requirement that the defendant’s failure to appear be in bad faith. J0715 Additional Learning

Question 17

In federal court, Plaintiff served on Defendant a complaint that has only a short statement of the claim showing that Plaintiff is entitled to relief and a demand for judgment for relief, with some alternative arguments for why judgment should be granted.
Are there any defects with this complaint?

A No. The complaint is satisfactory

B Yes. Plaintiff did not include a short statement of the grounds for the court’s jurisdiction and should not have made alternative arguments for why judgment should be granted

C Yes. Plaintiff should not have made alternative arguments for why judgment should be granted

D Yes. Plaintiff did not include a short statement of the grounds for the court’s jurisdiction

Answer 17

D

A complaint must include a short statement of the grounds for the court’s jurisdiction, a short statement of the claim showing that the claimant is entitled to relief, and a demand for judgment for relief (which may be in the alternative). The complaint that Plaintiff served on Defendant did not include a short statement of the grounds for the court’s jurisdiction. The answer choices providing that Plaintiff should not have made alternative arguments for why judgment should be granted are incorrect; such arguments are acceptable to make. To say that the complaint is satisfactory is incorrect, as discussed above. Note that in recent years, the Supreme Court has added a requirement that the plaintiff state facts supporting a plausible (not just possible) claim. J0709B Additional Learning

Question 18

An answer that does not contain specific denials or admissions of each averment in the complaint must then contain _______ to be valid.

A Counterclaims

B Affirmative defenses

C A general denial with specific admissions to certain averments

Answer 18

C

An answer that does not contain specific denials or admissions of each averment in the complaint must then contain a general denial with specific admissions to certain averments to be valid. It is true that affirmative defenses and certain counterclaims should be included in the answer, but the answer must contain either specific denials or admissions of each averment or contain a general denial with specific admissions to certain averments in order to be valid. J0713B Additional Learning

Question 19

The United States has a right _______ in all cases where the constitutionality of a federal statute is raised.

A To implead

B To interplead

C Of intervention

Answer 19

C

The United States has a right of intervention in all cases where the constitutionality of a federal statute is raised. Generally, intervention of right is available whenever the applicant claims an interest in the property or transaction that is the subject matter of the action, and the disposition of the action without her may impair her ability to protect that interest (unless her interest is already represented). Interpleader permits a person in the position of a stakeholder to require two or more claimants to litigate among themselves to determine which, if any, has the valid claim where separate actions might result in double liability on a single obligation. Impleading is when a defending party brings in a third-party defendant. J0734A Additional Learning

Question 20

The plaintiff _______ required to reply to the defendant’s answer _______.

A Is not; under any circumstances

B Is not; unless the court orders plaintiff to do so

C Is; unless the court orders that it is not required

Answer 20

B

The plaintiff is not required to reply to the defendant’s answer unless the court orders plaintiff to do so. Therefore, it is incorrect to state that plaintiff is not required to reply under any circumstances or that the plaintiff is required to reply unless the court orders that it is not required. J0718 Additional Learning

Question 21

If it is determined that an absentee’s interest in the subject matter of the litigation would be affected by a judicial determination of a case, but the court does not have personal jurisdiction over him,

A The case may proceed if the court determines that it can shape relief to protect that interest

B The case must proceed

C The case must be dismissed

Answer 21

A

If the absentee cannot be joined to the case for some reason—such as if the court lacks personal jurisdiction over him or his presence would destroy diversity or venue—the case may proceed if the court determines that it can shape relief so as to protect that interest. Thus, the case must be dismissed is an incorrect answer choice. It is within the discretion of the trial court to continue if it can shape relief so as to protect the absentee’s interest in the subject matter of the litigation. The case must proceed is also an incorrect answer choice. J0723B Additional Learning

Question 22

If a default is entered against a defendant, he loses the right to:

A Contest liability, but he still may be heard at the hearing for damages

B Contest liability, and he may not be heard at the hearing for damages

C Raise counterclaims, but he may still contest liability and be heard at the hearing for damages

Answer 22

A

If a default is entered against a defendant, he loses the right to contest liability, but he still may be heard at the hearing for damages. Note that it is fairly common to have the court set aside entry of default (unlike a default judgment). It is not true that the defendant may contest liability, which makes the other answer choices incorrect. The defendant may not raise counterclaims either. J0715A Additional Learning

Question 23

In federal court, and without a court order, which of the following is an authorized way to serve process on an individual (other than on a minor or an incompetent person)?

A Following the state rules for service of process

B E-mailing a copy of the summons and complaint to the defendant

C Mailing a copy of the summons and complaint to the defendant

D Posting the summons and complaint on the defendant’s property

Answer 23

A

A federal court may follow the state rules for service of process. In federal court, service by posting the summons and complaint on the defendant’s property and e-mailing a copy of the summons and complaint to the defendant are not authorized methods of service. However, note that such methods would be permissible if allowed by state law. Mailing a copy of the summons and complaint to the defendant is not, by itself, an authorized method of service. Rather, in federal court, the mailing is a request to waive service, and must include a waiver form describing the impact of waiving (or not waiving) service. Of course, like above, if state rules authorize service by mail, a plaintiff can use mail for service for process. A minor or incompetent person must be served in accordance with the rules of the state in which service is to be made. J0703 Additional Learning

Question 24

In general, pleadings should consist of short and plain statements; however, circumstances that establish _______ must be alleged with particularity.

A Fraud or mistake

B Malice, intent, or knowledge

C Performance of conditions precedent

Answer 24

In general, pleadings should consist of short and plain statements; however, circumstances that establish _______ must be alleged with particularity.

A Fraud or mistake

B Malice, intent, or knowledge

C Performance of conditions precedent

Question 25

Parties may _______ whenever some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transaction and there is a question of fact or law common to all the parties.

A Be joined as defendants (but not join as plaintiffs)

B Join an action as plaintiffs (but not be joined as defendants)

C Join an action as plaintiffs or be joined as defendants

Answer 25

C

Parties may join an action as plaintiffs or be joined as defendants whenever 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 there is a question of fact or law common to all the parties. These same rules for permissive joinder apply to both the joining of plaintiffs and defendants, therefore, join an action as plaintiffs (but not be joined as defendants) and be joined as defendants (but not join as plaintiffs) are both incorrect. J0724 Additional Learning

Question 26

Prior to the scheduling conference required by Federal Rule 16(b), the parties:

A Must exchange contact information, including whether alternative document delivery (e.g., by e-mail) is acceptable

B Must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, any issues concerning the preservation of evidence, and a discovery plan

C Must submit their case to arbitration or mediation

Answer 26

B

At least 21 days before a scheduling conference is held or the scheduling order required by Federal Rule 16(b) is due, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, any issues concerning the preservation of evidence, and a discovery plan. The parties must then submit to the court a proposed discovery plan within 14 days after the conference. The answer “must exchange contact information, including whether alternative document delivery (e.g. by e-mail) is acceptable” is incorrect. The initial consultation required by the Federal Rules requires the parties to go farther in case preparation than the mere exchange of contact information. “Must submit their case to arbitration or meditation” is incorrect because alternative dispute resolution is largely controlled by local district court rules and does not supplant the meet and confer requirements of the Federal Rules. J0736 Additional Learning

Question 27

When can a defendant raise the defense of lack of subject matter jurisdiction for the first time?

A At any time, including on appeal

B At the time the defendant files a motion or his answer (whichever comes first)

C At any time as long as it is prior to trial or at trial

Answer 27

A

A defendant may raise the defense of lack of subject matter jurisdiction for the first time at any time, including on appeal under Federal Rule 12(b). Failure to state a claim upon which relief can be granted and failure to join a party needed for just adjudication may be raised for the first time at any time as long as it is prior to trial or at trial, but that is not true for the defense of lack of subject matter jurisdiction. Lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process all must be raised at the time the defendant files a motion or his answer (whichever comes first), but that is not true for the defense of lack of subject matter jurisdiction. J0710 Additional Learning

Question 28

When a defendant brings a nonparty into an action because she believes that the nonparty is or may be liable to her for any part of a judgment that the plaintiff may recover, it is called:

A Intervention

B Impleader

C Interpleader

Answer 28

B

When a defendant brings a nonparty into an action because she believes that the nonparty is or may be liable to her for any part of a judgment that the plaintiff may recover, it is called impleader. Interpleader permits a person in the position of a stakeholder to require two or more claimants to litigate among themselves to determine which, if any, has the valid claim where separate actions might result in double liability on a single obligation. There are two types of intervention. When an applicant wants to intervene in an action because she has an interest in the property or transaction that is the subject matter of the action, and the disposition of the action may impair her ability to protect that interest, such an intervention is called an intervention of right. Permissive intervention is available when the applicant’s claim or defense and the main action have a question of fact or law in common. No direct personal or pecuniary interest is required, and permissive intervention is in the discretion of the court. J0735 Additional Learning

Question 29

A party may set forth as many _______ as she has, regardless of consistency.

A Claims or defenses

B Defenses (but not claims)

C Claims (but not defenses)

Answer 29

A

A party may set forth as many claims or defenses as she has, regardless of consistency. Therefore, “claims (but not defenses)” and “defenses (but not claims)” are incorrect. J0716 Additional Learning

Question 30

Under certain circumstances, a _______ may be issued without notice to the other party.

A Preliminary injunction

B Temporary restraining order

C Summary judgment

Answer 30

B

A court may grant, in its discretion, an ex parte temporary restraining order if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition. The other requirements are that the moving party must (i) certify in writing all efforts she made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and (ii) provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security. Preliminary injunctions and summary judgments require notice to the other party in order to be issued. J0707 Additional Learning

Question 31

In federal civil cases, when an attorney (or unrepresented party) presents any pleading, written motion or other document to the court, she makes four certifications.
She certifies that, to the best of her knowledge, information and belief, after a reasonable inquiry under the circumstances: (i) _______; (ii) _______; (iii) the allegations and factual contentions have or, after investigation, are likely to have evidentiary support; and (iv) the denials of factual information are warranted by the evidence or, if specified, are reasonably based on a lack of information.

A No contrary precedent could be found; the legal contentions therein are warranted by existing law or by a nonfrivolous argument for modification of an existing law or establishment of a new law

B The paper is not presented for an improper purpose; no contrary precedent could be found

C The client has read or been told of the contents of the pleading; the legal contentions therein are warranted by existing law or by a nonfrivolous argument for modification of an existing law or establishment of a new law

D The paper is not presented for an improper purpose; the legal contentions therein are warranted by existing law or by a nonfrivolous argument for modification of an existing law or establishment of a new law

Answer 31

D

Under Federal Rule 11, when an attorney (or unrepresented party) presents any pleading, written motion or other paper to the court, she certifies that to the best of her knowledge, information and belief, after a reasonable inquiry under the circumstances: (i) the paper is not presented for an improper purpose; (ii) the legal contentions therein are warranted by existing law, or a nonfrivolous argument for modification of an existing law or establishment of a new law; (iii) the allegations and factual contentions have evidentiary support, or are likely to have it upon further investigation; and (iv) denials of factual information are warranted on the evidence, or, where specified, are reasonably based on a lack of information. That no contrary precedent could be found and that the client has read or been told of the contents of the pleading are not listed in Rule 11. J0721 Additional Learning

Question 32

The plaintiff used fraudulent means to get the defendant to come into the state so that the plaintiff could serve him with process.
In this instance, service of process on the defendant is _______ the court _______ personal jurisdiction over the defendant.

A Invalid but; did acquire

B Invalid and; did not acquire

C Valid and; did acquire

D Valid but; did not acquire

Answer 32

B

Because the plaintiff used fraudulent means to get the defendant to come into the state, service of process on the defendant is invalid and the court did not acquire personal jurisdiction over the defendant. Answers that provide that the service of process is valid or that the court did acquire personal jurisdiction are incorrect. J0705B Additional Learning

Question 33

Generally, amendments to pleadings relate back to the date the original pleading was filed if:

A The amendment concerns the same conduct, transaction, or occurrence that was set forth in the original pleading

B The amendment does not add a new cause of action

C The statute of limitations has not expired

D The amendment does not add parties to the action

Answer 33

A

Generally, amendments to pleadings relate back to the date the original pleading was filed if the law that provides the statute of limitations applicable to the action permits relation back or the amendment concerns the same conduct, transaction, or occurrence that was set forth in the original pleading. Hence, the filing date of the amendment is deemed to be the filing date of the original pleading. It is not true that just because the amendment does not add parties to the action that it automatically relates back. An amendment changing the party or the naming of the party against whom a claim is asserted relates back if the amendment concerns the same conduct, transaction, or occurrence as the original pleading and if, within 120 days after filing the complaint and such additional time as the court may order upon showing of good cause (essentially the time period for service of process), the party to be brought in by amendment: (i) Has received such notice of the action that she will not be prejudiced in maintaining her defense on the merits; and (ii) Knew or should have known that, but for a mistake concerning the proper party’s identity, the action would have been brought against her. The Supreme Court has emphasized that it is the knowledge of the party to be brought in by amendment (not of the plaintiff) that is relevant. An amendment adding a new cause of action is permitted if the new cause of action is derived from the same facts that was set forth in the original pleading, making “the amendment does not set forth a new cause of action” an incorrect answer choice. It is also not true that a pleading may be amended only if the statute of limitations has not expired. J0720 Additional Learning

Question 34

When jurisdiction is based on a federal question claim, a nonfederal claim:

A May be added because the court has supplemental jurisdiction over the state claim

B May be added if it is derived from a common nucleus of operative fact as the federal claim

C May not be added because jurisdiction would be destroyed

Answer 34

B

When jurisdiction is based on a federal question claim, a nonfederal claim may be added if it is a proper supplemental claim, i.e., it may be added if it is derived from a common nucleus of operative fact as the federal claim. The court has supplemental (pendent) jurisdiction over such a claim. Therefore, it is incorrect to say that the claim may not be added because jurisdiction would be destroyed. It is too broad to say that the claim may be added because the court has supplemental jurisdiction over the state claim. For supplemental jurisdiction to apply, the state claim must arise from the same case or controversy as the federal claim. Supplemental jurisdiction does not automatically apply. J0725 Additional Learning

Question 35

A written agreement to arbitrate:

A Is enforceable at the discretion of the trial court

B Is not enforceable

C Is enforceable unless a ground for revocation exists

Answer 35

C

A written agreement to arbitrate a dispute is enforceable unless a contractual ground for revocation exists (e.g., fraud in the inducement, illegality, or unconscionability as to the arbitration clause). Thus, it is not correct that the agreement is not enforceable. “Is enforceable at the discretion of the trial court” is incorrect because the matter is not within the discretion of the trial court. J0737 Additional Learning

Question 36

Sanctions may be imposed on a party for violating the Rule 11 signature and certification requirements:

A On the court’s own motion or on motion of the opposing party

B Only on motion of the opposing party

C Only on the court’s own motion

Answer 36

A

Sanctions may be imposed on a party for violating Rule 11 on the court’s own motion or on motion of the opposing party. Therefore “only on motion of the opposing party” and “only on the court’s own motion” are incorrect. A court on its own initiative may enter an order describing the matter that appears to violate Rule 11 and direct the proponent to show cause for why sanctions should not be imposed. A party who believes that an opposing party has presented a paper that violates Rule 11 may serve a motion for sanctions on the opposing party. If the party does not withdraw or correct the matter within 21 days, the moving party may then file the motion for sanctions with the court. J0722 Additional Learning

Question 37

Which of the following is a factor under Rule 23 in considering whether named representatives will be permitted to sue on behalf of a class?

A It is too difficult to notify potential members of the class

B It would be expensive for individual plaintiffs to sue in separate actions

C The class is so numerous that joinder of all members is impracticable

Answer 37

C

One of the factors listed under Rule 23 for determining whether named representatives can sue on behalf of a class is whether the class is so numerous that joinder of all members is impracticable. Named representatives will be permitted to sue on behalf of a class if: (i) The class is so numerous that joinder of all members is impracticable; (ii) There are questions of law or fact common to the class; (iii) The named parties’ interests are typical of the class; (iv) The named representatives will ensure the fair and adequate representation of the interests of absent members of the class; and (v) The action meets the definition of any of the following three types of class actions found in Rule 23(b): i. Separate actions by class members would create a risk of inconsistent results or, as a practical matter, would impair the interests of other absent members of the class; or ii. A defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; or iii. There are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication. Accordingly, that it would be expensive for individual plaintiffs to sue in separate actions and that it is too difficult to notify potential members of the class are not listed factors under Rule 23. J0726 Additional Learning

Question 38

If a plaintiff induces a defendant by fraud to enter a state for the purpose of service of process, that service of process is:

A Valid unless the inducement was to appear in a court action in that state

B Invalid

C Valid

D Invalid unless otherwise in compliance with process requirements

Answer 38

B

If a plaintiff induces a defendant by fraud or deceit to enter a state for the purpose of service of process, that service of process is invalid. Note that the court also does not acquire personal jurisdiction. Service is invalid in all cases, even if otherwise in compliance with process requirements. Hence, it is incorrect that service is valid, regardless of whether the inducement was to appear in a court action in that state. J0705A Additional Learning

Question 39

A court _______ an ex parte temporary restraining order if the moving party gives specific facts in an affidavit or in the verified complaint to establish that _______ will result.

A Must grant; injury

B May grant, in its discretion; injury

C Must grant; immediate and irreparable injury

D May grant, in its discretion; immediate and irreparable injury

Answer 39

D

A court may grant, in its discretion, an ex parte temporary restraining order if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition. The other requirements are that the moving party must (i) certify in writing all efforts she made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and (ii) provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security. Because the court may grant the ex parte temporary restraining order in its discretion, choices that the court must grant the order are incorrect. The court may look at the likelihood that the plaintiff will prevail on the merits of the complaint and may weigh the injury anticipated by the moving party against the harm caused by issuing the temporary restraining order. To issue an ex parte temporary restraining order, evidence of immediate and irreparable injury must be shown. Evidence just of injury is insufficient. J0707A Additional Learning

Question 40

Can a defendant raise a counterclaim in her answer even if her counterclaim is unrelated to the claims in the plaintiff’s complaint?

A Yes. It is a permissive counterclaim and may be raised in her answer

B No. The defendant’s counterclaim must be brought in a separate action

C Yes. It is a compulsory counterclaim and must be raised in her answer

Answer 40

A

If a counterclaim is unrelated to a claim in Plaintiff’s complaint, it is a permissive counterclaim and may be raised in her answer. Therefore it is incorrect to say that it is a compulsory counterclaim and must be raised in her answer. Because it is a valid, permissive counterclaim, there is no need that it be brought in a separate action. J0714B Additional Learning

Question 41

Under the federal rules, _______ answering the pleading, a party may move for a more definite statement, if the moving party received a pleading that is so vague or ambiguous that a responsive pleading cannot reasonably be framed.

A After

B Before

C While

Answer 41

B

Under Federal Rule 12(e), before answering the pleading, a party may move for a more definite statement if the moving party received a pleading that is so vague or ambiguous that a responsive pleading cannot reasonably be framed. The motion must be made before answering the pleading, therefore, after and while are incorrect. The party opposing the motion then has 14 days after notice of an order to obey unless the court fixes a different time. If not obeyed, the court may strike the pleading or issue any other appropriate order. J0711 Additional Learning

Question 42

Under Rule 11, in federal civil cases, when an attorney (or unrepresented party) presents any pleading, written motion or other paper to the court, she certifies that it is not being presented for an improper purpose.
Which of the following would not constitute an improper purpose under Rule 11?

A Harassment of the other party

B A nonfrivolous argument for establishing a new law

C Delay of proceedings

Answer 42

B

A nonfrivolous argument for establishing a new law would not be considered an improper purpose under Rule 11. Harassment of the other party and delay of proceedings would be considered improper purposes. In federal civil cases, when an attorney (or unrepresented party) presents any pleading, written motion or other paper to the court, she certifies that to the best of her knowledge, information and belief, after a reasonable inquiry under the circumstances: (i) the paper is not presented for an improper purpose; (ii) the legal contentions therein are warranted by existing law, or a nonfrivolous argument for modification of an existing law or establishment of a new law; (iii) the allegations and factual contentions have evidentiary support, or are likely to have it upon further investigation; and (iv) denials of factual information are warranted on the evidence, or, where specified, are reasonably based on a lack of information. J0721A Additional Learning

Question 43

In a federal question case in which the plaintiff claims that the defendant infringed federal copyright law, can the plaintiff add a claim that the defendant’s same actions also violated state law as to unfair competition?

A No, because claims based on state law cannot be added in federal question cases

B Yes, because the federal court can exercise supplemental jurisdiction when the state and federal claims arise from a “common nucleus of operative fact”

C Yes, because the federal court can exercise supplemental jurisdiction over any claims between the same plaintiff and the same defendant

Answer 43

B

In a federal question case where the plaintiff claims that the defendant infringed federal copyright law, the plaintiff can add a claim that defendant’s same actions also violated state law as to unfair competition, because the federal court can exercise supplemental (pendent) jurisdiction when the state and federal claims arise from a “common nucleus of operative fact.” It is therefore incorrect to state that state law based claims cannot be added in federal question cases. State law based questions must meet the supplemental jurisdiction test, so the federal court cannot exercise supplemental jurisdiction over any claims between the same plaintiff and the same defendant. The claims must meet the common nucleus of operative fact test. J0725B Additional Learning

Question 44

What is a compulsory counterclaim?

A A counterclaim that arises out of the same transaction or occurrence as one of the plaintiff’s claims

B A counterclaim against a compulsory party

C Any counterclaim against the plaintiff

Answer 44

A

A compulsory counterclaim is a counterclaim that arises out of the same transaction or occurrence as one of the plaintiff’s claims. Any counterclaim against the plaintiff is not compulsory; it must arise out of the same transaction or occurrence as one of the plaintiff’s claims. Compulsory joinder of parties requires that a plaintiff join all interested parties or face dismissal of the lawsuit. It is a distinct area of the law from compulsory counterclaims. Thus, a counterclaim against a compulsory party is incorrect. Note that compulsory counterclaims must be pleaded or they will be barred. Any other counterclaim is permissive and may be asserted even though there is no connection between it and the plaintiff’s claims. J0714 Additional Learning

Question 45

The answer to a complaint must contain a specific denial or admission of each averment, or a general denial with specific admissions to certain averments.
A failure to deny a particular averment is deemed:

A An admission

B A denial

C May be considered an admission or a denial in the court’s discretion

Answer 45

A

A failure to deny a particular averment is deemed an admission as to that averment. Hence, a failure to deny is neither a denial nor an admission or a denial in the court’s discretion. J0713 Additional Learning

Question 46

Under federal service of process rules, any person who is ______ and not a party to the action may serve the summons and complaint.

A Appointed by the court

B At least 21 years old

C At least 18 years old

Answer 46

C

Per Rule 4, any person who is at least 18 years old and not a party to the action may serve the summons and complaint. At least 21 years old and appointed by the court are incorrect. A party may request that service of process be made by a U.S. marshal or another person appointed by the court, but the process server need not be court appointed in federal court. (Some states do require appointment of a private process server.) J0702 Additional Learning

Question 47

In a class action founded on diversity of citizenship jurisdiction, the citizenship of _______ is taken into account to establish diversity.

A The named representatives and the unnamed members of the class

B Only the named representatives of the class

C Only the unnamed members of the class

Answer 47

B

In a class action founded on diversity jurisdiction, the citizenship of only the named representatives of the class is taken into account to establish diversity. The citizenship of the unnamed members of the class is not taken into account, so the other two answer choices are incorrect. J0729 Additional Learning

Question 48

Under the Class Action Fairness Act, a federal court may have subject matter jurisdiction over a class action so long as: (i) _______ of diverse citizenship with _______, (ii) the amount in controversy in the aggregate exceeds $5 million, and (iii) there are at least 100 members in the class.

A Any named class member is; all defendants

B Any class member is; all defendants

C Any class member is; Any defendant

D All named class members are; all defendants

Answer 48

C

Under the Class Action Fairness Act (“CAFA”), a federal court may have subject matter jurisdiction over a class action so long as: (i) any class member is of diverse citizenship with any defendant, (ii) the amount in controversy in the aggregate exceeds $5 million and (iii) there are at least 100 members in the class. For class actions brought under CAFA, it is irrelevant whether the class member is named. Thus, the answers “all named class members” and “any named class members” are incorrect. Furthermore, minimal diversity, not complete diversity, is required under CAFA. Thus, if any member of the class is of diverse citizenship with any defendant, the diversity requirement is satisfied. Diversity need not exist as to all defendants. J0731 Additional Learning

Question 49

A member of a class in a class action who objects to the approval of a settlement _______ bring an appeal.

A May

B May not

C May, in a “common question” case only,

Answer 49

A

A member of a class in a class action who objects to the approval of a settlement may bring an appeal. This right is not limited to a “common question” case only. Also, given that class members may appeal a settlement, may not is incorrect. J0730B Additional Learning

Question 50

Notice of the pendency of a class action to all members of the class is required:

A Only in “common question” class actions

B Only in “defendant has refused to act/ injunctive or declaratory relief” class actions

C In all class action suits

D Only in “avoiding inconsistent results” class actions

Answer 50

A

Notice of the pendency of a class action to all members of the class is required only in “common question” class actions, so that class members can opt out. The notice must state (i) the nature of the action, (ii) the definition of the class, (iii) the class claims, issues, or defenses, and (iv) the binding effect of a class judgment. Notice of the pendency of the class action need not be given in “avoiding inconsistent results” class actions, in “defendant has refused to act/ injunctive or declaratory relief” class actions, nor, therefore, in all class action suits. In class actions other than “common question” suits, notice to the members of a class of the pendency of action is in the court’s discretion. J0728 Additional Learning

Question 51

If there are no common questions of fact or law among members of a class that predominate over individual issues, can a class action still be available?

A No. Common questions of law or fact must predominate over individual issues for a class action to be available

B Yes, so long as (1) separate actions by class members would create a risk of inconsistent results or would impair the interests of other absent members of the class AND (2) a defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole

C Yes, so long as (1) separate actions by class members would create a risk of inconsistent results or would impair the interests of other absent members of the class OR (2) a defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole

Answer 51

C

If there are no common questions of fact or law among members of a class that predominate over individual issues, a class action may still be available so long as (1) separate actions by class members would create a risk of inconsistent results or would impair the interests of other absent members of the class OR (2) a defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole. Only one of these conditions must be met, so the answer choice that requires both (1) AND (2) is incorrect. Named representatives will be permitted to sue on behalf of a class if: (i) The class is so numerous that joinder of all members is impracticable; (ii) There are questions of law or fact common to the class; (iii) The named parties’ interests are typical of the class; (iv) The named representatives will ensure the fair and adequate representation of the interests of absent members of the class; and (v) The action meets the definition of any of the following three types of class actions found in Rule 23(b): i. Separate actions by class members would create a risk of inconsistent results or, as a practical matter, would impair the interests of other absent members of the class; or ii. A defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; or iii. There are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication. As (v) makes clear, it is not true that common questions of law or fact must predominate over individual issues for a class action to be available. J0726A Additional Learning

Question 52

An intervention is considered timely if:

A The applicant intervenes prior to the start of the trial

B The court determines, in its discretion, that the intervention is timely

C The applicant intervenes within 30 days following the filing of the plaintiff’s complaint

Answer 52

B

An intervention is considered timely if the court determines, in its discretion, that the intervention is timely. There is no specific timeline for the timeliness of interventions, therefore, prior to the start of trial and within 30 days following the filing of the plaintiff’s complaint are both incorrect. J0734B Additional Learning

Question 53

Which of the following best states what a claim for relief should contain?

A (1) A short statement of the grounds for the court’s jurisdiction and (2) a short statement of the claim showing that the claimant is entitled to relief
Incorrect

B (1) A short statement of the grounds for the court’s jurisdiction, (2) a short statement of the claim showing that the claimant is entitled to relief, (3) a demand for judgment for relief (which may be in the alternative), and (4) a short statement setting forth the damages (monetary and otherwise) being requested

C (1) A short statement of the grounds for the court’s jurisdiction, (2) a short statement of the claim showing that the claimant is entitled to relief, and (3) a demand for judgment for relief (which may be in the alternative)

Answer 53

C

Generally, a complaint should include all of the following: (1) A short statement of the grounds for the court’s jurisdiction, (2) a short statement of the claim showing that the claimant is entitled to relief, and (3) a demand for judgment for relief (which may be in the alternative). The choice that leaves out the demand for judgment for relief is incorrect because it is not as complete as the correct choice. The choice that adds a short statement setting forth the damages (monetary and otherwise) being requested is incorrect because that is not one of the requirements. Note that in recent years, the Supreme Court has added a requirement that the plaintiff state facts supporting a plausible (not just possible) claim. J0709 Additional Learning

Question 54

A pleading may be amended once as a matter of course within 21 days of serving it or, if the pleading is one to which a responsive pleading is required, within 21 days after service of a responsive pleading or a pre-answer motion.
Thereafter, the pleading may be amended if the amending party has:

A The written consent of the adverse party or leave of the court on motion

B The leave of the court on motion only

C The written consent of the adverse party only

D Shown good cause for needing to amend its pleading

Answer 54

A

A pleading may be amended once as a matter of course within 21 days of serving it or, if the pleading is one to which a responsive pleading is required, within 21 days after service of a responsive pleading or a pre-answer motion. Thereafter, the pleading may be amended if the amending party has the written consent of the adverse party or leave of the court upon a motion. The written consent of the adverse party only and the leave of the court upon a motion only are incorrect because they omit one of the ways that a party may amend after the 21 day period. The party having shown good cause for needing to amend its pleading is not an adequate answer, as it does not explain what is needed to amend the pleading, and good cause does not need to be shown. The court should freely grant leave to amend “when justice so requires.” J0719 Additional Learning

Question 55

Under certain circumstances, if a party brings an action in federal court and an opposing party brings an action in state court, the federal court may enjoin the state court action.
If the federal court is unable to enjoin the state court action, _______ will have a preclusive effect on _______.

A The state court decision; the federal court decision

B The federal court decision; the state court decision

C The case initiated first; the other case

D The case coming to a final decision first; the other case

Answer 55

D

When a case is filed in state court by one party and in federal court by the other party, the federal court is prohibited from enjoining the state court proceedings unless doing so is (i) expressly authorized by statute (e.g. an interpleader provision), or (ii) it is necessary in aid of its jurisdiction or to protect or effectuate its judgments. If the federal court is unable to enjoin the state court action, the case coming to a final decision first will have a preclusive effect on the other case. Therefore, stating that the federal court decision or the state court decision will preclude the other is incorrect. The issue is timing as to the decision rendered; thus, it is not governed by the case that was initiated first. J0738A Additional Learning

Question 56

Under the federal rules, the time period for filing ________ may never be extended.

A A motion for summary judgment or a motion for a new trial

B An answer or a renewed motion for judgment as a matter of law

C A motion to amend the judgment or a motion for summary judgment

D A renewed motion for judgment as a matter of law or a motion for a new trial

Answer 56

D

The time period for filing a renewed motion for judgment as a matter of law or a motion for a new trial may never be extended under Federal Rule 6(b). This is also true for the time periods for a motion to amend the judgment, a motion for a new trial, a motion to amend findings of fact in a nonjury case, or a grant of a new trial on the court’s initiative. They all must be filed within 28 days after entry of judgment. The time periods for an answer and for a motion for summary judgment may be extended for good cause under Rule 6(b); therefore, answer choices with these options are incorrect. J0706A Additional Learning

Question 57

The general rule for pleadings is that:

A They should be pleaded with particularity

B Complaints should be pleaded with particularity, but answers need not be

C They should consist of short and plain statements

Answer 57

C

The general rule for pleadings is that they should consist of short and plain statements. Generally pleadings need not be pleaded with particularity, nor is it true that complaints should be pleaded with particularity, but answers need not be. The main exceptions to the general rule are that fraud or mistake must be stated with particularity, and elements of special damages must be specifically stated. J0717 Additional Learning

Question 58

Under Rule 64, the use of provisional remedies (e.g., garnishment, replevin, attachment) is governed by state law in federal courts.
_______ is a court order directing that money or property in the hands of a third party be seized.

A Garnishment

B Attachment

C Replevin

Answer 58

A

Garnishment is a court order directing that money or property in the hands of a third party be seized. Replevin is a process by which the plaintiff takes possession of and holds disputed property during the lawsuit (possession pendente lite). Attachment is a process by which another’s property is seized in accordance with a writ or judicial order for the purpose of securing a judgment yet to be entered. J0708A Additional Learning

Question 59

Potential class members can “opt out” of a class action suit that was formed under which of the following circumstances?

A When there are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication

B When a defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole

C When separate actions by class members would create a risk of inconsistent results or, as a practical matter, would impair the interests of other absent members of the class

Answer 59

A

Potential class members can “opt out” of a class action suit that was formed when there are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication. This is known as a “common question” class action. Class actions that are permitted because they meet other requirements of Rule 23(b); i.e., when separate actions by class members would create a risk of inconsistent results or, as a practical matter, would impair the interests of other absent members of the class or when a defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole do not permit potential class members to opt out. J0727 Additional Learning

Question 60

In a shareholder derivative suit, the amount in controversy for jurisdictional purposes is based upon the damage suffered by:

A The minority shareholders

B The corporation

C The shareholder(s) bringing the suit

Answer 60

B

In a shareholder derivative suit, the amount in controversy for jurisdiction purposes is based upon the damage suffered by the corporation, not the minority shareholders or the shareholder(s) bringing the suit. J0732 Additional Learning

Question 61

In order for a class action to be founded on diversity jurisdiction, the court must consider the citizenship of _______ and whether _______ $75,000.

A All named class representatives; one of their claims exceeds

B One named class representative; all such claims exceed

C One named class representative; one such claim exceeds

D All members of the class; each class member’s claim exceeds

Answer 61

A

In order for a class action to be founded on diversity jurisdiction, the court must consider the citizenship of all named class representatives and whether one such claim exceeds $75,000. The citizenship of all members of the class is not taken into account. Nor must each class member’s claim exceed $75,000. It is not true that only one named class representative must be of diverse state citizenship; the citizenships of all named class representatives are taken into consideration. J0729B Additional Learning

Question 62

In federal court, if a person travels to another jurisdiction solely to be a witness in a court action, he:

A Is immune from service of process

B Is immune from process only if he were fraudulently served with a subpoena to be a witness

C Is immune from process only because he is a witness and not a party

D May be served with process in person

Answer 62

A

If a witness travels to another jurisdiction solely to be a witness in a court action, the witness is immune from service of process. Therefore, the witness may not be served with process in person while in the other jurisdiction for court purposes. The immunity rule applies to witnesses, parties, and attorneys alike. Thus, it is not correct that he is immune from process only because he is a witness and not a party. Immunity from being a witness is a separate concept from being fraudulently induced to come into a jurisdiction for purposes of serving process and obtaining personal jurisdiction. Participation in a judicial proceeding is grounds for immunity and does not require fraud on the part of the serving party. Thus, the choice providing immunity only if he were fraudulently served with a subpoena to be a witness is incorrect. J0705 Additional Learning

Question 63

If it is determined that an absentee’s interest in the subject matter of the litigation would be affected by a judicial determination of a case, the court has personal jurisdiction over the absentee, and joining him would not destroy jurisdiction or venue, he:

A Must be joined as a party to the case

B Need not be joined as a party to the case

C May be joined as a party to the case in the court’s discretion

D Need not be joined as a party to the case if the court determines that it can shape relief so as to protect that interest

Answer 63

A

An absentee must be joined as a party to the case if it is determined that he has an interest in the subject matter of the litigation that could be affected by a judicial determination in the case, the court has personal jurisdiction over the absentee, and joining him to the action would not destroy diversity jurisdiction or venue. If the absentee cannot be joined to the case for some reason—such as if the court lacks personal jurisdiction over him or his presence would destroy diversity or venue—the court may nonetheless proceed and the absentee need not be joined as a party to the case if the court determines that it can shape relief so as to protect that interest. However, the ability to shape relief will not excuse the failure to join such an absentee if the court has the ability to do so. If the party has an interest in the current litigation, and the court could join him (i.e., it has personal jurisdiction over him) without destroying subject matter jurisdiction or venue, the court must do so. It is not a discretionary matter. Thus, the answer “may be joined as a party to the case in the court’s discretion” is an incorrect answer. For the same reason, “need not be joined to the case as a party” is also incorrect. J0723 Additional Learning