Civil Procedure Learning Questions - Set 5 Flashcards
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 defendant failed to appear, and the defendant’s failure to appear was in bad faith
C
The plaintiff’s claim is for a sum certain and the default was entered because the defendant failed to appear
D
The defendant failed to appear
C
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.
Under certain circumstances, a _______ may be issued without notice to the other party.
A
Summary judgment
B
Preliminary injunction
C
Temporary restraining order
C
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.
In federal court, and without a court order, which of the following is an authorized way to serve process on an individual?
A E-mailing a copy of the summons and complaint to the defendant
B Mailing a copy of the summons and complaint to the defendant
C Following the state rules for service of process
D Posting the summons and complaint on the defendant’s property
C
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 of process.
In a federal question case, the action is always deemed commenced for statute of limitations purposes when:
A 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
B Process is served on the opposing party
C The complaint is filed with the court
D The complaint is filed, if service of process occurs within a specified timeframe
C
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.
A shopkeeper sued a supplier in federal court in a dispute over incomplete and incorrect deliveries. The shopkeeper and supplier presented their evidence at trial, and the case went to the jury with no motions being made at trial. The jury found in favor of the shopkeeper, and judgment was entered accordingly. Believing that there was insufficient evidence for a reasonable jury to find in favor of the shopkeeper, the supplier wants to overturn the verdict.
Which motion should the supplier file?
A A motion for summary judgment.
B A motion for judgment as a matter of law.
C A renewed motion for judgment as a matter of law.
D A motion for a new trial.
D
The supplier should file a motion for a new trial. A party can file a motion for a new trial no later than 28 days after judgment was entered. The supplier is within the time limit and can therefore file. (A) is incorrect because a motion for summary judgment should be filed before trial begins. (B) is incorrect because a motion for judgment as a matter of law should be made before submission of the case to the jury. (C) is incorrect because a renewed motion for judgment as a matter of law must be filed no later than 28 days after entry of judgment, and the party making the motion must have moved for judgment as a matter of law at some time during the trial. Here, the supplier did not move for judgment as a matter of law during the trial, and as a result the renewed motion is not available to him.
A homeowner, domiciled in State A, hired a contractor, domiciled in State B, to build an addition to his residence. Dissatisfied with the contractor’s work, the homeowner refused to pay the contractor. The contractor promptly commenced a contract action against the homeowner by filing a complaint in the federal court for State B, seeking damages in excess of $75,000.
The contractor’s lawyer went the homeowner’s residence in State A and attempted to hand the summons and complaint to a man who was painting the front porch of the residence. The lawyer told the man that he was serving legal papers. When the man refused to accept the papers, the lawyer touched the papers to the man’s arm and placed them on a nearby bench on the porch. The lawyer assumed that the man was the homeowner. In fact, he was the homeowner’s neighbor, whom the homeowner had hired to paint the porch while he was vacationing.
What is the homeowner’s best argument that service was improper?
A Process was served in State A.
B Process was served by the contractor’s lawyer.
C The man was the homeowner’s neighbor.
D The man refused to accept the papers.
C
The homeowner’s best argument is that the man was a neighbor. Under Rule 4, an individual defendant may be served by leaving a copy of the papers at the individual’s dwelling or place of abode with someone of suitable age and discretion who resides there. Here, service on the neighbor was improper because he did not reside there. (A) is incorrect because process can be served in any state. It need not be served in the state where the action was commenced. (B) is incorrect because process may be served by any person who is at least 18 years of age and not a party. Although the lawyer represents a party, he is not himself a party and is likely at least 18 years old. (D) is incorrect because service is valid even if the person served refuses to take the papers, as long as the process server informs him of the nature of the papers and leaves them in his presence. (Even if the process server is unable to touch the papers to the person and leaves them nearby, most courts would hold that service was proper.)QUESTION ID: MJ174
A homeowner hired an exterminator company to treat an existing house to protect it from termite infestation. The exterminator determined that it had to remove dirt around part of the foundation in order to treat the house properly. The exterminator thus hired a subcontractor to remove the dirt with a backhoe. While removing the dirt, the subcontractor damaged the foundation of the house. The homeowner filed an action against the exterminator in federal district court, seeking $90,000 in damages.
May the exterminator properly maintain a third-party claim against the subcontractor for any liability the exterminator may have to the homeowner?
A Yes, because third-party claims are permitted whenever they arise from the same transaction or occurrence as the original claims in an action.
B Yes, because the exterminator is claiming that the subcontractor is liable for the exterminator’s liability to the plaintiff.
C No, unless the exterminator seeks and obtains the court’s permission.
D No, because this claim does not meet the requirements for third-party practice.
B
The exterminator may properly maintain a third-party claim against the subcontractor. A defending party may implead a nonparty if the nonparty is or may be liable to the party for any part of a judgment that the plaintiff may recover against it. Because the exterminator is claiming that the subcontractor is liable for the exterminator’s liability to the plaintiff, it may implead the subcontractor. (D) is therefore incorrect. (A) is too broad. It is not sufficient that the third-party claim merely arise from the same transaction or occurrence. (C) is incorrect because a defendant does not need the court’s permission to bring a third-party claim.
A pilot who owned an air charter service adjacent to a crop duster’s hangar at a municipal airport sued the crop duster in federal court for allowing chemicals to contaminate the ground outside the pilot’s office in violation of federal standards. The pilot sought a preliminary injunction against further operations by the crop duster. The court denied the injunction, but agreed to hear the case on the merits. The pilot believes that the pesticides pose an immediate danger, so he appeals the denial of the injunction.
May the pilot immediately appeal the denial of the injunction?
A No, because the order is not final.
B No, because the trial court agreed to hear the case on the merits.
C Yes, because federal law permits appeal of orders denying an injunction.
D Yes, because the pilot will suffer immediate harm.
C
The pilot may immediately appeal the court’s decision, because federal law permits appeal of orders denying an injunction. Interlocutory orders denying an injunction may be appealed in the federal court system. [28 U.S.C. 1292(a)] This constitutes an exception to the general rule that interlocutory orders are not appealable because they are not final. Thus, (A) and (B) are incorrect. (D) is incorrect. Although the pilot may suffer immediate harm, it does not provide a basis for an immediate appeal.
