Civil Procedure- Missed MBE Questions

Question 1

T/F: The claims, issues, or defenses of a certified class (in a class-action lawsuit) may be voluntarily settled, compromised, or dismissed ONLY WITH the approval of the court.

Answer 1

TRUE

Question 2

T/F: An amendment to a pleading will RELATE BACK to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading.

Answer 2

TRUE

Question 3

An employee was fired by his employer after being accused of not providing service to the company’s customers in a proper and professional manner. At the time of the firing, both the employee and the employer were citizens of State A. Immediately upon being fired, the employee moved to State B to live with his mother. The employee retained the apartment he owned in State A and left most of his personal belongings there. He did not look for a new job in State B. After the employee had stayed with his mother for a few weeks, he filed a claim against his employer for employment discrimination based on the law of State A in a federal district court in State B for $80,000.

Does the court have diversity jurisdiction over this claim?

No, because the employee had not changed his citizenship from State A to State B.

No, because diversity is determined at the time the cause of action arose.

Yes, because a party may voluntarily acquire citizenship in another state after the accrual of a cause of action.

Yes, because diversity is determined at the time the case is filed.

Answer 3

No, because the employee had not changed his citizenship from State A to State B.

Federal courts have diversity jurisdiction when the plaintiff and the defendant are citizens of different states, and the amount in controversy exceeds $75,000. A party may voluntarily change state citizenship after the accrual of a cause of action but before the commencement of a lawsuit and thereby establish or defeat diversity jurisdiction. A party’s motive for changing citizenship is irrelevant, but there must be A GENUINE CHANGE of state citizenship. Here, the employee failed to demonstrate the INTENT necessary to change his state citizenship from State A to State B. Rather, he simply temporarily moved to State B, possibly in an attempt to create diversity.

Question 4

A driver from State A was involved in a major car accident in State B with a bus driver from State C and a livery driver from State D. The driver suffered serious injuries in the accident, resulting in $150,000 in medical bills. The driver sought to bring a diversity action in federal district court based on negligence against the bus driver and the livery driver. Assume each state only has one federal district court, and each court has jurisdiction over all of the parties.

Where is venue proper?

Either State C or State D

Either State A or State B

State A only

State B only

Answer 4

State B only

In general, venue in a federal civil action is proper in only one of the following judicial districts: (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located, or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located. In this case, the car accident (the event) occurred in State B. The driver’s claim arose out of the car accident. Therefore, venue is proper in State B.

Question 5

T/F: Regarding removal, Federal courts cannot abstain from hearing a properly removed case.

Answer 5

FALSE

Question 6

T/F: Unlike with subject matter jurisdiction, a defendant may consent to personal jurisdiction.

Answer 6

TRUE

Question 7

T/F: Regarding in rem jurisdiction, In rem jurisdiction exists over personal property located in the forum state.

Answer 7

TRUE

Question 8

T/F: In determining whether a court has quasi-in-rem jurisdiction, the minimum contacts test that applies to in personam jurisdiction does not apply.

Answer 8

FALSE

Question 9

T/F: Regarding Pleadings- The plaintiff’s recovery is generally limited to the claim for relief made in the complaint.

Answer 9

FALSE

Question 10

FILL IN THE BLANKS. An amendment to a pleading may be made _________ as a matter of right. When leave of the court must be sought, leave should be _________ granted.

A
once, sparingly

B
once, freely

C
at any time before trial, sparingly

D
at any time before trial, freely

Answer 10

once, freely

Question 11

T/F: Regarding intervention, Supplemental jurisdiction is not permitted with respect to either intervention as of right or permissive intervention in cases based solely on diversity.

Answer 11

TRUE

Question 12

T/F: Regarding statutory interpleader, the bulge provision, which permits service of process within 100 miles of a federal court, applies.

Answer 12

FALSE

Question 13

Must a Permissive Counter-Claim be supported by an independent jurisdictional basis?

Answer 13

YES

Question 14

T/F: Interrogatories may be answered by supplying the records from which the answers can be ascertained when the burden of finding the information is substantially the same for either party.

Answer 14

TRUE

Question 15

T/F: The failure to respond to a request for admission results in the matter being admitted.

Answer 15

TRUE

Question 16

T/F: Regarding the standards for appellate review, the standard for setting aside judicial findings of fact is “clearly erroneous.”

Answer 16

TRUE

Question 17

FILL IN THE BLANKS. In a diversity action, the federal court will apply _____________ law to determine the role of the jury, and ________________ law to determine what defenses may be asserted.

A
federal, federal

B
federal, state

C
state, federal

D
state, state

Answer 17

federal, state

Question 18

T/F: Voluntary appearance of the defendant in court automatically subjects the defendant to personal jurisdiction of the court, UNLESS she is present in court to object to personal jurisdiction.

Answer 18

TRUE

Question 19

An engineer brought suit against her former employer, a large technology company, in federal district court for violating a patent that she owned. She claimed $50,000 in damages. The engineer also sought to join a state law breach-of-contract claim against the company; the claim was based on the engineer’s assertion that the company had not paid her a $10,000 bonus she had earned one year before leaving the company. The engineer and the company are citizens of the same state.

Does the court have subject-matter jurisdiction over the contract claim?

Yes, because joinder is permitted under these circumstances and thus supplemental jurisdiction applies.

Yes, because the claims are required to be joined and thus supplemental jurisdiction applies.

No, because the engineer’s contract claim does not arise out of the same set of facts as the patent claim.

No, because the claims, even when aggregated, do not meet the amount-in-controversy requirement.

Answer 19

No, because the engineer’s contract claim does not arise out of the same set of facts as the patent claim.

A party asserting a claim may join with it as many independent or alternative claims of whatever nature against the opposing party so long as the court has subject-matter jurisdiction over the new claims.

If the original claim is based on federal-question jurisdiction, as it is here, then a non-federal claim (such as the state law breach-of-contract claim here) may be joined only if diversity jurisdiction exists or if the new claim arises out of the same case or controversy as the federal claim such that supplemental jurisdiction applies.

In this case, the requirements for diversity jurisdiction are not satisfied because the engineer and the company are citizens of the same state. The claims are also not part of the same case or controversy because one concerns the company’s patent violation, while the breach-of-contract claim is a separate cause of action based on the company’s failure to pay the engineer a bonus and does not arise from the same operative facts as the patent claim.

Question 20

T/F: If a plaintiff has voluntarily dismissed an action based on a claim, a subsequent voluntary dismissal of an action based on the SAME CLAIM is a dismissal with prejudice and thus has a preclusive effect.

Answer 20

TRUE

This is sometimes referred to as the “two-dismissal” rule.

Question 21

Four plaintiffs brought an action in federal court under Securities and Exchange Commission Rule 10b-5 against corporate officers for alleged misstatements about the effect of a recent merger on the corporation’s revenues and liabilities. The plaintiffs sought class certification for a Rule 23(b)(3) class action. The court determined that the plaintiffs met the requirements for serving as class representatives. The court also ruled that permitting the action to proceed as a class action was superior to individual lawsuits in bringing about a fair and efficient adjudication of the controversy, although the court did note that prosecution of the claims of class members through separate actions would not impair their interests. In addition, the court found that although there were questions of law and fact that were common to the class members, these questions did not predominate over questions affecting only individual members.

On these facts and findings, should the court grant class certification?

No, because prosecution of the class members’ claims through separate actions would not impair their interests.

No, because the common questions of law or fact did not predominate over questions affecting only individual members.

Yes, because a class action was superior to individual lawsuits in the adjudication of this controversy.

Yes, because the plaintiffs met the requirements for serving as class representatives.

Answer 21

No, because the common questions of law or fact did not predominate over questions affecting only individual members.

Under Rule 23(b)(3), a class can be certified if the questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method in bringing about a fair and efficient adjudication of the controversy. Here, although the court found that the second requirement had been satisfied, the court also determined that the first requirement—the domination of common questions of fact or law—was not met. Consequently, the court should not certify the class. Answer choice A is incorrect because the impairment of class members’ claims through separate prosecutions is not a requirement for a Rule 23(b)(3) class action, but instead is one way in which a Rule 23(b)(1) class action can be certified.

Question 22

While vacationing in State D, a plaintiff, a resident of State A, was involved in an automobile accident with a delivery truck. The delivery truck driver was a resident of State B, and he was delivering packages for a parcel shipping company whose principal place of business was in State C and was incorporated in State D. The plaintiff brought suit against the delivery truck driver and the parcel shipping company in State D state court seeking to recover $85,000 for personal injury and property damage.

If the delivery truck driver seeks to remove the action to State D federal district court, will he be successful?

Yes, because the State D federal district court has diversity jurisdiction over the claim.

Yes, because removal is a right of a defendant.

No, because once a claim is filed in a state court, it cannot be removed to a federal court.

No, because the parcel shipping company is a resident of State D.

Answer 22

No, because the parcel shipping company is a resident of State D.

Generally, an action commenced in a state court that is within the original jurisdiction of a U.S. district court may be removed by the defendant to the district court for the district in which the state court action was commenced. However, if removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed. Here, the parcel shipping company is a resident of State D; therefore, the claim cannot be removed to federal court.

Question 23

T/F: An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in the judicial district in which the plaintiff resides

Answer 23

TRUE

Question 24

At the close of a civil negligence trial in federal court, the judge properly explained to the jury that under the law of respondeat superior, the employer cannot be liable if the employee is not also liable. The jury returned a verdict against the employer but not the employee, even though the plaintiff had presented evidence that the employer’s liability solely arose under the respondeat superior doctrine. The plaintiff requested that the jury be polled, and each juror confirmed the verdict as his or her own. Before the jury was dismissed, both the employer and the plaintiff requested that the court resubmit the case to the jury.

Can the court grant this request?

Yes, because the plaintiff had requested that the jury be polled.

Yes, because the jury did not follow the court’s instructions in reaching its verdict.

No, because the jury has already rendered its verdict.

No, because a juror may not impeach her own verdict.

Answer 24

Yes, because the jury did not follow the court’s instructions in reaching its verdict.

When a jury’s verdict does not properly follow the court’s instructions, the court may set aside the verdict and order the jury to resume deliberations. In this case, because the court properly instructed the jury as to the law, the court can order the jury to resume deliberations, and would even be within its discretion to order a new trial.

Question 25

T/F: Voluntary appearance of the defendant in court automatically subjects the defendant to personal jurisdiction of the court, UNLESS she is present in court to object to personal jurisdiction. Appearance for the express purpose of making a jurisdictional objection is NOT consent to the court’s jurisdiction over her.

Answer 25

TRUE

Question 26

A retailer incorporated in State A sued the publisher of a newsletter for libel in a State C state court. The retailer’s complaint sought $1 million in damages in good faith. The retailer, which had its headquarters in State B, did business throughout the United States but had its largest warehouse in State C, where it also operated more stores than any other state. The publisher of the newsletter, which had subscribers in every state, was an individual who lived most of the year abroad but continued to be domiciled in State C. The publisher timely filed a petition to remove the libel action to a State C federal district court. Should the federal court deny this petition? Answer Choices: No, because diversity jurisdiction exists. No, because the newsletter is published nationwide. Yes, because the retailer and publisher are citizens of the same state for diversity purposes. Yes, because the publisher is a citizen of the forum state.

Answer 26

Yes, because the publisher is a citizen of the forum state. When removal is based solely on diversity jurisdiction, the action may not be removed if the defendant is a citizen of the state in which the action is filed. Here, the publisher is a citizen of the state of the publisher’s domicile, State C; the publisher is not treated as an alien, even though the publisher lives most of the year abroad. Consequently, the case cannot be removed from State C state court to federal court.

Question 27

During the defendant’s cross-country road trip, he was involved in a car accident with the plaintiff in the state where the plaintiff lived. Following the accident, the plaintiff sued the defendant in federal court located in the state where the accident occurred. Prior to the accident, the defendant had never been to the forum state. The defendant flew home from the forum state directly following the accident, and has not been back to the forum state since that time. Before filing a responsive pleading, the defendant filed a motion to dismiss, arguing that the court lacked personal jurisdiction. The court denied the defendant’s motion. What is the most likely basis for the exercise of jurisdiction over the defendant in this case? General jurisdiction. In rem jurisdiction. Quasi in rem jurisdiction. Specific jurisdiction

Answer 27

Specific jurisdiction. When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jurisdiction may be warranted even if that contact is the defendant’s only contact with the forum state. This type of jurisdiction is often referred to as “specific jurisdiction.” In this case, the defendant’s only contact with the state was his drive through the state, at which time the accident occurred. Accordingly, the court could likely exercise jurisdiction over the defendant under the doctrine of specific jurisdiction. Answer choice A is incorrect because the defendant likely did not have sufficient contacts with the forum state to make the exercise of general jurisdiction proper. When a cause of action does not arise out of or relate

Question 28

The State H federal district court chose a representative for a class of 67 patients who were allegedly injured by negligent medical care at a hospital in State H and collectively suffered damages of $3,000,000. After correctly asserting diversity jurisdiction, the court certified the class upon finding that the four basic requirements for a class action had been met and that prosecution of the claims through separate actions would impair the interests of other class members. The court posted on the courthouse bulletin board its certification order, which (1) described the action, the class, and the legal claims; and (2) informed class members that they may appear through an attorney and may request an exclusion, but otherwise are bound by the class judgment. Most members of the class never saw this notice, including one patient who suffered especially severe damages as a result of the hospital’s negligence. After the class action trial was almost finished, the patient, who was unaware of the trial, filed a separate suit in the State H federal district court against the hospital. Should the court allow that suit? Answer Choices: Yes, because the contents of the notice did not meet the requirements of the federal class action rule. Yes, because the patient never received appropriate notice of the class action. No, because the Class Action Fairness Act prohibits such suits. No, because the court properly certified the class and was not required to provide notice of the class action.

Answer 28

No, because the court properly certified the class and was not required to provide notice of the class action. The court certified the class after applying the Rule 23(a) requirements (numerosity, common questions, typicality, and adequate representation) and then determining that the case fell within Rule 23(b)(1) as a “risk of prejudice” situation. Notice of a class action is not required in this situation, but only in a Rule 23(b)(3) situation. Thus, the court did not have to give any notice, even though it posted a notice in the bulletin board.

Question 29

An investor brought an action in federal district court for damages based on a violation of federal securities law. The defendant, a foreign corporation, received service of process by proper means in its country of incorporation. While the defendant’s contacts with the state in which the forum court sits do not satisfy the “minimum contacts” test, the defendant’s contacts with the entire United States satisfy this test. Of the following, which additional fact must the investor establish in order for the court to exercise personal jurisdiction over the defendant? Answer Choices: No state court could exercise jurisdiction over the foreign corporation. The district court is located in the state in which the investor is domiciled. The applicable federal securities law provides for nationwide service of process. The court has personal jurisdiction over the defendant under the long-arm statute of the forum state.

Answer 29

No state court could exercise jurisdiction over the foreign corporation. Under Rule 4(k)(2), a federal court may exercise personal jurisdiction over a foreign defendant, even though the court would not otherwise have personal jurisdiction over the defendant due to the application of the “minimum contacts” test to the defendant’s contacts with the forum state. In order for this rule to apply, the plaintiff’s claims must be based on federal law. In addition, the exercise of personal jurisdiction over the defendant must be consistent with the United States Constitution and the laws of the United States. In other words, the defendant must have sufficient contacts with the United States as a whole to justify the exercise of personal jurisdiction over the defendant. In this case, the facts state that the investor’s claim is based on federal securities law. In addition, the defendant’s contacts with the entire United States satisfy the “minimum contacts” test. Thus, the exercise of personal jurisdiction over the defendant would be consistent with the laws of the United States and the Constitution. For the federal district court to exercise personal jurisdiction over the defendant, investor must additionally establish that no state court could exercise jurisdiction over the defendant.

Question 30

On January 15, the plaintiff, a citizen of one state, sued the defendant, a citizen of another state, in the federal district court in the defendant’s home state. The plaintiff’s complaint credibly alleges that (1) the defendant breached a contract with the plaintiff that resulted in $150,000 in damages, and (2) the court has diversity jurisdiction. On April 1, the plaintiff served process on the defendant by sending the summons and complaint to the defendant’s residence via Overnight Express Mail, a form of service authorized by the law of the forum state. The defendant moves to dismiss the complaint based on insufficient service of process. Should the court grant this motion? Answer Choices: Yes, because the Federal Rules authorize service only on a defendant personally, on a person of suitable age and discretion at defendant’s usual abode, or on an agent authorized by a defendant or by law to receive service. Yes, because the service of process was not timely. No, because under the Erie doctrine, the federal court must apply state law. No, because the Federal Rules allow service that follows state law governing courts in the state where the federal district court is located.

Answer 30

No, because the Federal Rules allow service that follows state law governing courts in the state where the federal district court is located. In diversity jurisdiction, federal courts follow federal procedural rules. Although FRCP4(e) sets forth the three methods of service described in answer choice A as permissible methods, service may also be effected by following state law in an action brought in courts in a state where the federal district court is located. Plaintiff's mail service here is sufficient because it follows the forum state's law.

Question 31

A plaintiff secured a default judgment for breach of contract against a defendant in a diversity action brought in federal district court in State X. The defendant, a natural person, was not domiciled in State X, but had sufficient contacts with the state to satisfy the minimum contacts test. The defendant was properly served with process but elected not to contest the action. The plaintiff has, pursuant to statute, registered the judgment with a federal district court located in State Y. The defendant has a bank account in State Y, but otherwise has no property or contacts with the state. The plaintiff has sought a court order permitting a levy against the defendant’s bank account to satisfy the judgment. The defendant has challenged this order on grounds that the federal district court in State Y lacks personal jurisdiction over the defendant. How should the court rule on the defendant’s challenge? Answer Choices: Uphold the challenge, because the defendant did not litigate the matter in the federal district court in State X. Uphold the challenge, because the defendant lacks minimum contacts with State Y. Deny the challenge, because of the Full Faith and Credit Clause in Article IV of the U.S. Constitution. Deny the challenge, because the minimum contacts test does not apply.

Answer 31

Deny the challenge, because the minimum contacts test does not apply. Satisfaction of the minimum contacts test is generally required for a court to have personal jurisdiction over a defendant. However, once a court with personal jurisdiction over a defendant renders a judgment, that judgment is enforceable by a court in another state by seizure of the defendant’s property located in that state, even if the defendant does not have minimum contacts with the state. Here, the federal district court in State X had personal jurisdiction over the defendant because the defendant had sufficient contacts with State X to satisfy the minimum contacts test and the defendant was properly served with notice of the action. Therefore, the State X federal district court’s judgment against the defendant can be enforced by the federal district court in State Y by levy against the defendant’s bank account in State Y.

Question 32

In a negligence action in a jurisdiction that had adopted comparative negligence, a jury rendered a verdict that the plaintiff suffered $90,000 in damages and was 10 percent at fault. The plaintiff’s attorney had presented evidence and argued in his closing argument that the plaintiff’s damages were $100,000. Immediately after the verdict, the plaintiff, with permission from the court, discussed the case with all six of the jurors together before they left the courtroom. The plaintiff discovered that each of the jurors thought, contrary to the court’s instructions, that the damage amount was the amount that the plaintiff would receive, rather than the amount from which 10 percent would be deducted. The plaintiff seeks to offer testimony from each juror to that effect in order to increase the amount of the verdict to $100,000. Is the testimony of the jurors admissible? Answer Choices: Yes, because a mistake was made by the jury in rendering its verdict. Yes, because the jury misunderstanding was related to the applicable law, rather than the facts. No, because a juror cannot be questioned about a verdict in the presence of the other jurors. No, because a juror cannot testify as to any juror’s mental processes concerning a verdict.

Answer 32

No, because a juror cannot testify as to any juror’s mental processes concerning a verdict. The basic rule that a juror cannot impeach his own verdict applies in this case. A juror CANNOT testify as to the mental processes that he or any other juror used in arriving at a verdict, even when those mental processes reflect a misunderstanding of the law.

Question 33

An employee sued her employer in the federal district court in their home state. The plaintiff-employee claimed that the defendant-employer fired her because of her gender, thereby violating a federal statute granting victims of such discrimination a right to sue in federal court. The plaintiff’s complaint included an unrelated claim that, many months before her firing, the defendant violated state law by breaching a contract to sell her concert tickets. The defendant’s answer contained two key provisions. First, he contended that he did not fire the plaintiff because of her gender, but rather because she routinely took two-hour lunch breaks during which she consumed alcohol, which resulted in the significant impairment of her work performance. Second, the defendant asserted a counterclaim alleging that the plaintiff’s lengthy lunch breaks and drinking breached her employment contract under state law. The defendant has moved to dismiss the plaintiff’s state-law contract claim involving the concert tickets on jurisdictional grounds. In response, the plaintiff has moved to dismiss the defendant’s state-law counterclaim on jurisdictional grounds. How should the court rule on these motions? Answers: Grant both motions. Deny both motions. Grant the defendant’s motion, but deny the plaintiff’s motion. Grant the plaintiff’s motion, but deny the defendant’s motion.

Answer 33

Correct Answer: Grant the defendant’s motion, but deny the plaintiff’s motion. The federal court should grant the defendant’s motion because it has no jurisdiction over the state-law contract claim concerning the tickets. This state claim CANNOT be entertained by the court through the exercise of supplemental jurisdiction because the claim did not arise out of the SAME FACTUAL PREDICATE as the federal discrimination claim (the firing), but rather involves an UNRELATED transaction. In addition, the court lacks diversity jurisdiction because both the plaintiff and defendant are from the forum state. Although a plaintiff may join independent claims against a defendant under the PERMISSIVE joinder rule (Rule 18), the court MUST have subject matter jurisdiction over these claims, and such jurisdiction is absent. On the other hand, the court should deny the plaintiff’s motion to dismiss, even though the court lacks diversity jurisdiction over the defendant’s state law claim. The defendant is required to bring the counterclaim that Plaintiff’s lunch breaks and drinking violated state law because that counterclaim arose out of the same factual occurrence that is the subject of the plaintiff’s federal claim (the firing). This commonality warrants the exercise of supplemental jurisdiction.

Question 34

A plaintiff, a resident of State A, filed a complaint against two defendants in a state court in State B, where a car accident between the parties took place. The claims were based solely on state law. One defendant resides in State B, where the accident occurred, and another resides in State C, a neighboring state. The complaint alleged $100,000 in damages. The defendant who resides in State B was personally served with a complaint and summons while he was walking to work. The defendant who resides in State C was served by a process server in the forum state after attending a business meeting in that state. Shortly thereafter, both defendants filed a motion to remove the case to the federal district court in the district where the case was filed. The federal district court denied the motion. What is the most likely reason that the motion was denied? Answers: One of the defendants is a citizen of the state in which the action was filed. The federal court could not exercise personal jurisdiction over both defendants. The federal court lacked subject-matter jurisdiction over the claims. Venue would be improper in the federal district court.

Answer 34

Correct Answer: One of the defendants is a citizen of the state in which the action was filed. A civil action filed in state court may be removed to the district court where the state court action commenced if that federal court has original jurisdiction over the matter. If removal is sought solely based on diversity jurisdiction, however, the claim cannot be removed if any defendant is a citizen of the state where the original action was filed. In this case, one of the defendants was a citizen of State B, where the action was filed, and removal is therefore improper. **Limitation on Removal in Diversity Cases** "If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed. There is no similar requirement for removal based on federal question jurisdiction."

Question 35

Frequently Tested Exception to PJ- If a DEFENDANT is merely "passing through" the state (such as driving or flying) PJ CAN/CANNOT be asserted over him.

Answer 35

CANNOT Simply driving through a state does not establish "Minimum contacts."

Question 36

A plaintiff filed suit against a defendant in federal district court in State A under diversity jurisdiction for damages resulting from the alleged negligence of the defendant. The plaintiff is a citizen of State A and the defendant is a citizen of State B. The defendant owned a valuable antique car which he kept garaged in State C. In a State C court, the plaintiff obtained a prejudgment attachment against the defendant’s car to prevent its sale before the State A lawsuit was resolved. Upon receiving notice of the attachment, the defendant moved to quash it. Which of the following statements is accurate? Answers: The prejudgment attachment is automatically unconstitutional. The attachment should be quashed if the State C court cannot constitutionally assert personal jurisdiction over the defendant. The attachment should not be quashed regardless of whether the State C court can constitutionally assert personal jurisdiction over the defendant. The federal district court in State A has in rem jurisdiction over the car.

Answer 36

Correct Answer: The attachment should be quashed if the State C court cannot constitutionally assert personal jurisdiction over the defendant. Quasi-in-rem jurisdiction requires minimum contacts to exist between the defendant and the forum state before jurisdiction will apply. If the State C court cannot constitutionally assert personal jurisdiction over the defendant, as the answer choice posits, then there is no jurisdiction (either in personam or quasi-in-rem) and the attachment should be quashed. Answer choice A is incorrect because prejudgment attachment is not automatically unconstitutional. If due process is met, prejudgment attachment is constitutionally permissible.

Question 37

An employee filed an action in federal district court against her employer, who does business as a sole proprietor, for violation of federal law regarding overtime pay. Both the employee and her employer reside within the geographic boundary of the district of the court where the action was filed. The business is located in the same state, but within the geographic boundaries of another federal district court. The employer has timely filed a motion to dismiss the action due to improper venue. Can the court grant this motion? Yes, because the events or omission on which the action is based took place in a judicial district other than the district in which the action was filed. Yes, because the court lacks diversity jurisdiction. No, because the employee resides in the district of the court where the action was filed. No, because the employer resides in the district of the court where the action was filed.

Answer 37

Correct Answer: No, because the employer resides in the district of the court where the action was filed. Venue is proper in the judicial district in which the defendant resides. Because this action was filed in that district, the venue is proper and the court should deny the motion.

Question 38

The owner of an airplane sued two buyers, a father and his adult son, in federal district court for breach of contract to purchase the airplane. The father is a citizen of a foreign country, but is a lawful permanent resident of the United States. His son is a citizen of the United States. Both the owner of the airplane and the father reside in the middle judicial district of a state with three federal judicial districts. The son resides in the eastern judicial district of that state. The airplane is located in the western judicial district, which is where the negotiations to purchase the airplane and the execution of the contract took place. The forum court is located in the middle judicial district. The son has timely filed a motion to dismiss the action due to improper venue. Should the court deny this motion? Answers: Yes, because an alien may be sued in any judicial district in the United States. Yes, because the father resides in the forum court’s district and his son resides in the same state. No, because the contract was negotiated and signed in the western district and the airplane is located there. No, because the son does not reside in the forum court’s district.

Answer 38

Correct Answer: Yes, because the father resides in the forum court’s district and his son resides in the same state. Venue is proper in a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located. An alien who is a lawful, permanent resident of the United States is treated as a United States citizen for venue purposes. Venue based on residency is determined by the judicial district in which such an alien resides. Consequently, venue is proper in this case because the father resides in the middle judicial district, the forum court’s district, and his son resides in the eastern district of the same state.

Question 39

A sports fan filed a state court action, based on an alleged assault and battery at a sporting event, against a private security officer and his employer. The forum state has multiple federal judicial districts. On the basis of diversity jurisdiction, the defendants removed the action from state court to the federal district court for the district in which the state court was located. The fan is domiciled in the forum state, but neither the fan’s residence nor the sporting venue is located in the district in which the federal court is located. The officer is domiciled in a neighboring state and the firm, which is incorporated and has its principal place of business in a third state, regularly does business in the forum state. On the basis of improper venue, the fan has challenged the removal of this action from state court to federal court. How should the federal court rule on this challenge? Answers: Uphold the challenge, because neither defendant is a resident of the forum state. Uphold the challenge, because a substantial part of the events or omissions on which the claims are based did not occur in the district of the federal court at issue. Deny the challenge, because the state court was located within the district of the federal district court at issue. Deny the challenge, because both defendants are subject to personal jurisdiction in the forum state.

Answer 39

Deny the challenge, because the state court was located within the district of the federal district court at issue. an action may be removed to the federal court in the district where the state action is pending. That removal statute determines venue, regardless of whether venue would have been proper under the venue statute (Section 1391) if plaintiff had originally brought the action in that federal district court.

Question 40

A plaintiff brought an action in federal district court to compel the owner of real property to sell the property to the plaintiff pursuant to their agreement. The plaintiff, knowing that there was “bad blood” between the owner and his adult son, approached the son about serving process on his father. The son readily agreed. Although the plaintiff had intended for the owner’s son to serve the owner personally, he instead served the owner by certified mail. The procedural rules of the forum state do not permit service by certified mail, but the procedural rules of the state in which the owner now resides permit such service. The owner filed a motion to quash service. How should the court rule on the owner’s motion? Answers: Grant the motion, because the owner was served with process by his son. Grant the motion, because the procedural rules of the forum state do not permit service by certified mail. Deny the motion, because the procedural rules of the state in which service was made permit service by certified mail. Deny the motion, because the plaintiff had intended for the owner to be personally served.

Answer 40

Deny the motion, because the procedural rules of the state in which service was made permit service by certified mail. Under the federal rules, service may be made by following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located (the forum state) or in the state where service is made. Because service by certified mail is permitted under the rules of the state where the owner was served with process, the service of process in this case was proper. Therefore, the court should deny the owner’s motion to dismiss.

Question 41

Three tenants in a small local mall with a total of 20 tenants seek to bring a class action lawsuit in state court against the owner of the mall based on fraud. The state rule regarding a class action lawsuit is identical to Federal Rule 23. The tenants seek both monetary damages and injunctive relief stemming from misrepresentations regarding estimated taxes and maintenance and utility charges that appeared in a standardized form provided to each mall tenant. The court made the following factual findings: 1) Joinder of all 20 members is practicable; 2) There are questions of fact and law common to the class; 3) The claims of the three tenants are typical of the claims of the class; and 4) The three tenants and their lawyer will fairly and adequately protect the interests of the class. Of the following basic requirements for the three tenants to sue as representatives of all of the tenants, which has not been satisfied? Answers: Numerosity Commonality Typicality Adequacy of representation

Answer 41

Numerosity In order for a representative of a class to sue on behalf of all members of a class, the class must be so numerous that joinder of all members is impracticable. Here, the court found that joinder of the 20 class members was practicable. Consequently, they may join the lawsuit as parties rather than being represented by the three tenants in a class action lawsuit.

Question 42

An engineer and a corporation entered into a contract. After the engineer failed to perform as required under the contract, the corporation filed a complaint for breach of contract in federal district court based on diversity jurisdiction. The corporation was incorporated and had its principal place of business in the forum state. The contract had been executed and performance was required to have taken place in a neighboring state of which the engineer was a lifelong resident. Instead of answering the complaint, the engineer served a motion to dismiss based on a lack of personal jurisdiction. Prior to the court ruling on the engineer’s motion to dismiss, can the corporation dismiss the action without the engineer’s agreement or the approval of the court? Answers: No, because it is likely that the court lacked personal jurisdiction over the engineer. No, because the engineer failed to perform as required under the contract. Yes, because a plaintiff is free to dismiss an action until it is set for trial. Yes, because the engineer had not served an answer or summary judgment motion.

Answer 42

Yes, because the engineer had not served an answer or summary judgment motion. A plaintiff may dismiss an action without court approval or the agreement of the other parties prior to the service of an answer or summary judgment motion. A motion to dismiss for lack of personal jurisdiction is not a summary judgment motion. (Note: Unless the plaintiff has dismissed a prior action based on the same claim, the dismissal is without prejudice.)