Civil Procedure: POO pourri Review

Question 1

True or false: An appeal must be filed within 21 days of the final judgment

Answer 1

False: Appeals need to be filed within typically 30 days after trial

Question 2

If a plaintiff wishes to bring a case that falls within some category in Article III, Section 2, must she sue in federal court or can she choose a state court instead?

Answer 2

If a case meets the qualifications on the list in Article III, they have met sufficient conditions for subject matter jurisdiction. However, it’s not necessary that the case be tried in federal court.

Generally speaking, a case that gets brought into federal court may also be brought in a state court.
Up to plaintiff to decide

Concurrent jurisdiction exception: Congress may provide that a particular category of federal cases may only be held in federal court. “Exclusive federal jurisdiction”

Question 3

A federal district court entered a default judgment against a defendant-retailer that had failed to appear or otherwise defend against a products-liability claim. A second customer of the retailer, who was not a party to the first lawsuit, subsequently sued the same retailer in federal district court. The second customer was injured by the same product as the plaintiffs in the first lawsuit.

The second customer asserted a different legal theory than the plaintiffs in the first lawsuit but still had to prove that the product was defective. The retailer had been on the brink of bankruptcy during the first lawsuit and could not afford to defend itself. Some new investors had provided the retailer with additional funding, which the retailer could now use to defend itself in the second lawsuit. The second customer wanted to use the judgment in the earlier lawsuit to preclude the retailer from arguing that the product it sold was not defective.

Is the district court likely to conclude that the retailer is estopped from arguing that its product is not defective?

Answer 3

No, because no issues were litigated in the first lawsuit

When an issue of fact or law is (1) actually litigated and (2) determined by a valid and final judgment, and (3) the determination is essential to the judgment, collateral estoppel bars the issue’s relitigation in a subsequent action between the parties. Restatement (Second) of Judgments § 27. An issue is not actually litigated if there was a default judgment, or the parties conceded on or stipulated to an issue.

Question 4

Two divorcing spouses stipulated in their divorce proceedings that the marital home was worth $250,000. The divorce settlement, which was amicable, granted the former husband possession of the home. A state court entered the final settlement. Two months after the settlement, the home burned down as a result of negligently performed electrical work. The husband sued the general contractor who performed the work in federal district court. The contractor argued that the earlier divorce proceeding capped the home’s worth at $250,000.

Which of the following best explains the district court’s conclusion that the husband is not precluded from arguing that the home is worth more than $250,000?

Answer 4

The ex-spouses did not actually litigate the issue of the home’s value in the divorce proceedings.

When an issue of fact or law is (1) actually litigated and (2) determined by a valid and final judgment, and (3) the determination is essential to the judgment, collateral estoppel bars the issue’s relitigation in a subsequent action between the parties. Restatement (Second) of Judgments § 27. An issue is not actually litigated if there was a default judgment, or the parties conceded on or stipulated to an issue. Id. cmt. e.

Here, the ex-spouses settled the earlier divorce proceeding amicably and stipulated to the home’s worth in order to facilitate settlement. Therefore, the home’s worth was not actually litigated in the divorce proceeding, and this fact best explains the district court’s decision to permit the husband to argue that the home is worth more than $250,000.

Question 5

A plaintiff sued a defendant for breach of contract in state court in State A. The jury found for the plaintiff and awarded damages. The plaintiff subsequently sued the defendant again in federal district court in State B, claiming tortious interference with the plaintiff’s contracts with its customers. The plaintiff’s complaint in the second lawsuit alleged that the defendant’s earlier breach of the parties’ contract had caused the plaintiff to lose customers. The contract between the plaintiff and the defendant contained a choice-of-law provision, stating that any dispute between the parties involving the contract would be governed by the law of State C.

Which jurisdiction’s law will the federal district court in State B apply in determining the preclusive effect, if any, of the earlier state-court judgment?

Answer 5

State A

A federal court evaluating whether to give preclusive effect to an earlier state-court judgment applies the res judicata rules of the state where the earlier judgment was entered. Here, the earlier state-court judgment in the breach-of-contract case was entered by a court in State A. In determining the preclusive effect of this earlier judgment, the federal district court will therefore apply the law of State A.

Question 6

What is mandamus? Is it a substitute for appeal?

Answer 6

Mandamus: If a court makes a bad interlocutory decision, this is a “safety valve”

28 U.S.C. 1651(a): respondent trial judge challenging an action by the lower court

It’s not a substitute because the requirements explain why it’s not a substitute. It’s not intended to correct ordinary errors. Extraordinary remedy for extraordinary abuse, not just mistakes.

Question 7

Cannovo (from Oregon) sues Singh (from Minnesota) after he is fired by Singh three months into a one-year contract. He sues in an Oregon State Court, seeking $200,000 for breach of contract. Three months later, Cannovo amends the complaint to add a claim under the Americans with Disabilities Act, a federal statute, claiming that Singh failed to make reasonable accommodations for a disability that interfered with his job performance. Two weeks after receiving the amended complaint, Singh removes the case to federal court. Is this proper?

Answer 7

Removal is not proper because the case could have been removed as originally filed. By not removing the case 30 days after it was originally filed, Singh waived his right to remove.

Question 8

P sues D1 for $120K and D2 for $60K in a single action from a business dispute. Is the minimum requirement met?

Answer 8

Yes for D1, but not for D2

Question 9

P1 sues D for $50K, P2 joins as a co-plaintiff, asserting a claim against D for $60K in the action, arising from the same business dispute. Is the minimum requirement met?

Answer 9

No, because co-plaintiffs cannot add their claims together in a suit to reach the minimum.

Question 10

Which of the following cases may be removed to federal court?

1) Martinez, from Texas, sues Murphy, from Utah, on a state law breach of contract claim. In a Utah state court for $20K;
2) Martinez (from Texas) sues Murphy (from Utah) and Mercer (from Nevada) on a state law breach of contract claim. In a Utah state court for $200,000;
3) Martinez (from Texas) sues Murphy (from Utah) on a claim arising under federal law. She brings the suit in a Utah state court;
4) Martinez (from Texas) sues Hawkins (from Texas) on a state claim for negligence. Hawkins counterclaims against Martinez for violation of a federal statute

Answer 10

Martinez (from Texas) sues Murphy (from Utah) on a claim arising under federal law. She brings the suit in a Utah state court

Question 11

Rota, a Pennsylvania citizen, sues Matthews, Bernstein, Rollins and Grey (120-person law firm with offices in NY). Her claim is for fraud. Most of the partners live in NY, but ten live in NJ and one lives in PA. Is this a diversity case?

Answer 11

Probably not, since the firm is a citizen of NY, NJ, and PA. The claim arises under state law and there is no diversity jurisdiction, so it must be brought in state court.

Question 12

True or false: The Constitution automatically confers personal jurisdiction on the courts of a state.

Answer 12

False. The state legislature does this! Each state specifies how expansively its courts can exercise personal jurisdiction (as long as it is within US Constitutional bounds).

Question 13

You are a New Mexico citizen traveling to Arizona. You enter a local hardware store looking for a chainsaw. You tell the owner that you intend to bring the chainsaw back to New Mexico and the owner sells you a chainsaw. You return to New Mexico and are injured by the chainsaw, filing a lawsuit in New Mexico against the hardware store. Would it be constitutional for the New Mexico court to exercise personal jurisdiction over the store?

Answer 13

No. The claim does not arise out of the defendant’s contacts with New Mexico.

There would not be personal jurisdiction because the defendant did not direct the chainsaw to New Mexico. The defendant did not otherwise avail itself of the privilege of doing business in the state.

Question 14

Imagine that during a driving trip to Pennsylvania to Maine, Donald takes a wrong turn and, unbeknownst to him, drives to Vermont. Before Donald discovers his error, he hits Penelope. Penelope sues Donald in Vermont and Donald moves to dismiss the case for lack of personal jurisdiction.

Assuming Vermont’s long-arm statute authorizes jurisdiction over the action, the motion should be…?

Answer 14

Denied, because the case arises out of Donald’s contacts in Vermont.

A Vermont court would have a strong interest in hearing the case. All of the witnesses would likely be in Vermont. Fairness favors Vermont because the plaintiff is located there.

Purposeful availment doesn’t have to mean that Donald intentionally drove to Vermont (he didn’t!), but instead means that Donald purposefully drove his care into an area that happened to be Vermont.

Question 15

If you were representing a corporation in a stream of commerce case, what would you argue to an out-of-state jurisdiction to convince it that it should not be subject to specific jurisdiction?

What if you represent the plaintiff suing multiple parties in a stream of commerce case?

Answer 15

Defendant: Use O’Connor’s opinion from Asahi, Kennedy’s from McIntyre ==> Component part manufacturers do not direct their activity to any given state. Narrow approach, since the liberal approach is problematic (judicial economy, certainty)

Plaintiff: Use Brennan’s opinion from Asahi, Ginsburg’s from McIntyre. Liberal approach to stream of commerce (fairness, faith in the legal system)

Question 16

True or false: The 14th Amendment applies to states and the federal government.

Answer 16

False. LAS provision: 14th Amendment applies only to states

Federal court’s power is limited by 5th Amendment Due Process.

Question 17

Danzinger (GA resident) sues Alioto (FL resident) for injuries in an auto accident they had in Florida.

Danzinger files the suit in Florida federal court. He serves process by publishing notice of the action in a newspaper in the county where the action is pending for three weeks in a row.

Is service of process on Alioto proper? Does the court have PJ over Alioto?

Answer 17

Service was not proper, under Mullane, since newspaper publication (vs. personally serving, mailing a complaint and service form to A’s residence, sending certified mail requiring A’s signature to his home, other authorized Florida service statutes) alone would not suffice as reasonable attempt to notify.

Thus, there is not PJ against Alioto until he is properly served and can appear + defend.

Question 18

Hugo (P) serves Hyde (D) by having a private process server deliver the complaint to Hyde at her office.

Is this service of process proper?

Answer 18

No because Hugo did not include a copy of the summons with the complaint. FRCP 4(c)(1)

Question 19

Davis (WI citizen) gets drunk at a bar in Ohio while visiting friends. While drunk at the bar, he recklessly collides with Percy (OH citizen). Percy suffers injuries and sues Davis in Ohio state court. Davis is served at his home in Wisconsin. Davis moves to dismiss the claim on personal jurisdiction grounds.

Ohio has a statute that reads, “a defendant is subject to personal jurisdiction in Ohio only if the defendant resides in Ohio”

What should the court do?

Answer 19

Grant the motion because personal jurisdiction is not authorized under the Ohio statute.

Is this exercise of of personal jurisdiction constitutional? Yes, because it arises out of Davis’s in-state contacts.

However since the court is not authorized to exercise specific jurisdiction and it is not here.

Question 20

What are the differences between PJ, SMJ and Venue?

Answer 20

1) Constitution does NOT restrict a plaintiff’s choice of venues, but the Constitution DOES limit a federal court’s subject matter jurisdiction and a court’s authority to exercise personal jurisdiction.
2) Reasonable and convenient = venue restrictions help with this (witnesses, evidence, defendant). SMJ = limits a court’s power to hear a particular type of dispute. PJ = ensures litigation is fair to defendant.
3) Venue = whether a particular court within a state is a convenient location. PJ = Whether a state as a whole is a fair location in which to force the defendant to litigate.

Question 21

True or false: Plaintiffs can request a transfer, not removal

Answer 21

True. P’s cannot remove a case from state to federal court but they can request a transfer under §1404

Question 22

A plaintiff filed a lawsuit in federal district court against a contractor, alleging state-law claims based on poor workmanship in her home renovation. She sought $100,000 in damages. The defendant contractor then filed a third-party claim pursuant to Federal Rule of Civil Procedure 14 against his subcontractor (a corporation), alleging that the subcontractor was responsible for any damages that the plaintiff might be awarded in the case, because the subcontractor’s workers had performed the work that the plaintiff alleged was substandard. The plaintiff was a citizen of Louisiana, the defendant contractor was a citizen of Mississippi, and the third-party defendant subcontractor was a citizen of Louisiana and Mississippi.

Does the court have supplemental jurisdiction over the third-party claim between the contractor and subcontractor?

Answer 22

Yes, because 28 U.S.C. § 1367(a) is satisfied and § 1367(b) does not apply to a third-party claim brought by a defendant.

Question 23

A cargo company sued a railroad for damage to its cargo. The applicable federal law stated that venue was proper in the judicial district where the cargo shipment originated. In this case, the shipment originated in the Eastern District of Kentucky. During discovery, the cargo company discovered that the damage might have occurred as a result of construction done on a section of rail by a construction company in California. Consequently, the cargo company added the construction company as a defendant. The construction company moved to dismiss, correctly stating that it did no business in Kentucky and that the only activity in which it participated in connection with the present case took place in the Central District of California.

Should the court dismiss the claim against the construction company?

Answer 23

No, because the claim against the construction company arose out of a common nucleus of operative facts.

Under the doctrine of pendent venue, a claim that is not properly venued standing alone can still be heard by a court as long as a properly venued claim arising out of a common nucleus of operative fact is brought at the same time in the same district. Here, the federal statute states that venue is proper where the shipment originated, the Eastern District of Kentucky. Because the construction company is being added because of its possible role in the cargo damage, the claim against it can also be heard in the Eastern District of Kentucky even though it does no business there and its activities were confined to the Central District of California.

Question 24

A plaintiff sued a defendant in state court in State A. The complaint alleged violations of State A’s unfair-competition laws. Because the parties were completely diverse and the amount in controversy exceeded $75,000 exclusive of interest and costs, the defendant moved to remove the case to federal district court. The plaintiff resided in State A, which had one federal judicial district. The defendant resided in State B, which also had one federal judicial district.

In which of the following federal judicial districts, if any, is venue proper?

Answer 24

Only in the District of State A.

Section 1391 does not provide the venue rules for determining the proper judicial district for a case being removed from state to federal court. Rather, § 1391 only applies to determine proper venue for civil cases originally commenced in federal court. 28 U.S.C. § 1390(c). The proper venue for a case removed from state to federal court is the judicial district embracing the state court where the action was originally filed. 28 U.S.C. § 1446(a).

Here, because the defendant is removing the case from state to federal court, § 1391 does not apply. Rather, under § 1446(a), the proper venue is the District of State A, because that district embraces the state court where the action was originally filed.

Question 25

True or false: It is possible for a FRCP 20 joinder to be allowed by a court early in a case, then sever the joinder later?

Answer 25

True! Through Rule 42(b).

Question 26

True or false: Compulsory counterclaims can be brought at any time.

Answer 26

False. FRCP 13
Compulsory = must be asserted in the same action, failure to do so would be considered a waiver if there was time and understanding from P to plead the counterclaim.

Question 27

A patient who had been injured while being treated at a hospital was planning litigation strategy with her lawyer. The patient and hospital were both citizens of State A. During her hospital stay, the patient suspected that negligence by not only the hospital, but also by her surgeon and a nurse, had contributed to her injuries. The surgeon was a citizen of State A and the nurse was a citizen of State B. After an initial assessment, the lawyer believed that the patient could seek as much as $7,000,000 in damages, for which the hospital, surgeon, and nurse would be jointly and severally liable under controlling state law.

Ideally, the patient wanted to sue the hospital, the surgeon, and the nurse in a single lawsuit in federal district court.

How would a federal court address the patient’s potential negligence claims?

Answer 27

The plaintiff could join claims against all three potential defendants but the district court would not have subject-matter jurisdiction over all three claims.

Patient plaintiff may join multiple defendants in a single action if: (1) any right to relief is asserted against the defendants jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences, and (2) any question of law or fact common to all defendants will arise in the action. Fed. R. Civ. P. 20(a)(2).

A federal district court may exercise subject-matter jurisdiction if a claim: (1) presents a federal question, (2) meets the requirements for diversity jurisdiction (because the parties are completely diverse and the amount in controversy exceeds $75,000), or (3) is within the court’s supplemental jurisdiction. See 28 U.S.C. §§ 1331, 1332, 1367(a). A district court may exercise supplemental jurisdiction if a claim that lacks an independent jurisdictional basis shares a common nucleus of operative fact with another claim that has an independent jurisdictional basis, such that the two claims may be considered part of the same case or controversy. See 28 U.S.C. § 1367(a). However, where the district court’s jurisdiction is based solely on diversity, the court may not exercise supplemental jurisdiction over claims brought by plaintiffs, where doing so is inconsistent with the requirements for diversity. 28 U.S.C. § 1367(b).

Rule 20 allows the patient to join all three potential defendants, because she is arguing that the hospital, surgeon, and nurse are jointly and severally liable for her injuries. The claims against the three potential defendants all arise out of the same hospital visit. All of the claims are based in negligence, so the claims against each defendant will have at least one common issue of fact or law. Therefore, joinder of the three potential defendants is appropriate. Answer options B and D are necessarily incorrect.

Because the potential claims arise under state law, the district court does not have federal-question jurisdiction. The patient and the nurse are citizens of different states, and the amount in controversy of $7,000,000 exceeds the $75,000 threshold, so the district court would have diversity jurisdiction over that claim. However, both the hospital and the surgeon are citizens of State A, like the patient. Therefore, the district court would not have diversity jurisdiction over the patient’s claims against the hospital and the surgeon. Nor could the district court exercise supplemental jurisdiction. Each claim is brought by a plaintiff, in a case where the district court’s sole basis for jurisdiction is diversity. Exercising supplemental jurisdiction would not be consistent with the requirements for diversity (because the patient and each of the defendants are citizens of the same state). Therefore, the district court would not have subject-matter jurisdiction over all three claims.

Question 28

A plaintiff sued three defendants for breach of warranty, breach of contract, and fraud in federal district court. Following extensive discovery, the district court denied all pending motions for summary judgment, concluding that the plaintiff’s claims required a jury trial. Two weeks before trial was scheduled to begin, one of the defendants moved for leave to implead a third-party defendant. The defendant argued that underlying substantive law gave the defendant a right of indemnification against the third-party defendant for the breach-of-warranty claim.

What best explains the district court’s decision to deny the defendant’s motion for leave to implead the third-party defendant?

Answer 28

The defendant’s delay in bringing the third-party complaint was excessive.

In deciding whether to permit or deny impleader, a court will generally balance efficiency against prejudice. Specifically, the court will balance the extent to which impleader will save time, effort, and duplicative litigation on the one hand, against any prejudice or harm that might result to the parties on the other hand. The prejudice or harm might take the form of excessive introduction of issues unrelated to the main claim, unexplained or excessive delay in bringing the third-party complaint, or undue complication of the lawsuit.

the district court’s decision to deny the defendant’s motion for leave to implead a third-party defendant is best explained by the defendant’s excessive delay in bringing the third-party complaint. Trial on the plaintiff’s claims is set for two weeks. Joining a third-party defendant at this late stage in the litigation would prejudice not only the third-party defendant but also the other parties to the action.

Question 29

A homeowner sued a housepainter for breach of contract in federal district court. The housepainter had painted the home’s interior six months before the lawsuit, and the paint had begun to peel all over the home. The housepainter’s answer alleged that the cause of the peeling was a defect in the paint, which he had provided but not designed. Together with the answer, the housepainter filed a motion to dismiss under Rule 12(b)(7) for failure to join a required party, namely, the paint manufacturer.

Is the district court likely to grant the housepainter’s motion?

Answer 29

No, because the paint manufacturer is not a necessary party.

In deciding a motion to dismiss for failure to join a required party, a court must determine whether the omitted party is necessary, and whether it is feasible to join the omitted party. If the omitted party is necessary but it is not feasible to join them, then the court must decide whether to proceed with the lawsuit in the party’s absence or dismiss it. Fed. R. Civ. P. 19. A party is necessary if the court cannot provide complete relief in the party’s absence, or if the party has an interest in the case and proceeding without the party may either impair the party’s ability to protect that interest, or leave an existing party subject to multiple or inconsistent liabilities. Fed. R. Civ. P. 19(a)(1)(A), (B).

The paint manufacturer is not a necessary party. The homeowner may obtain complete relief from the housepainter. The paint manufacturer has no interest in the lawsuit that requires protecting, nor does proceeding in the absence of the manufacturer subject the housepainter to multiple or inconsistent liabilities. Therefore, the district court is not likely to grant the housepainter’s motion. Rather, the housepainter would be better served here by filing a third-party complaint against the paint manufacturer, provided that the underlying substantive law gives the housepainter a right of indemnification or contribution. See Fed. R. Civ. P. 14(a)(1).

Question 30

True or false: Under Rule 12, response to a summons must be served within 5 days days after service of summons

Answer 30

False, under Rule 12, response is acceptable up to 21 days after summons is served.

Question 31

Which of the following responses by a Defendant to service of the complaint and summons constitutes a default?

A. Defendant does not answer, but files a motion to dismiss for improper venue within 21 days. The motion is denied.

B. Defendant answers within 21 days and admits the allegations of the complaint.

C. D’s lawyer files an appearance within 21 days by submitting a paper to the clerk, giving her name, address, and bar #, stating that she is appearing for D

D. D herself brings a paper to the clerk saying that she plans to defend, then shows up in court on the 21st day saying she is ready to go to trial.

E. D answers the complaint 25 days after service of summons and complaint.

Answer 31

A. Not a default. Whether the motion is granted or denied is irrelevant. Initial defense does not have to be successful. By actively defending in a timely manner, you are following FRCP.

B. Not a default. By answering, D has pled. Any answer to whether or not there will be a judgement is too soon.

C. Default. Merely showing up doesn’t constitute a response. D should have done something more to demonstrate a desire to defend.

D. Not a default, since D showed up herself and made an effort to defend herself.

E. Default, since the SOL of response was 21 days. Unless there is good cause, the court will probably not grant the extra four days.

Question 32

Hunter sues Offshore for breach of contract. Offshore moves to dismiss for insufficient process (papers were deficient). The court denies the motion.

May Offshore now move to dismiss for failure to state a claim and insufficient service of process (to challenge sufficiency of service)? Or has Offshore waived those defenses?

What if Offshore argues that the defense of insufficient service of process was unavailable when it filed for its first pre-answer motion. Should they be allowed a second pre-answer motion?

Answer 32

Offshore cannot move to dismiss for failure to state a claim and insufficient service of process once they first moved to dismiss for insufficient process. No second pre-answer motion is permitted.

Offshore has waived the second round of defenses in the sense that they omitted the insufficient service of process. They can still, however, assert failure to state a claim by answer or later motion up until the end of the trial under Rule 12(h)(2)

Rule 12(g)(2) exempts unavailable defenses from its omnibus requirement… but it’s unlikely that the defense of insufficient service of process was unavailable.

Question 33

A plaintiff sued a defendant in federal district court. Ten days after being served with the complaint, the defendant filed a motion for a more definite statement under Rule 12(e). After taking two weeks to review the defendant’s motion, the plaintiff agreed that aspects of her complaint should be amended to provide more detail.

Does the plaintiff require consent from the defendant or leave from the court to amend her complaint?

Answer 33

No, because less than 21 days have passed since the defendant served a motion for a more definite statement.

A party may amend its pleading once as of right (without leave from the court or its opponent) within 21 days of serving the pleading or, if the pleading is one to which a responsive pleading is required, the earlier of either (1) 21 days after service of the response, or (2) 21 days after service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). To determine whether a pleading is one to which a response is required under Rule 15(a), one looks to the text of Rule 7(a); if Rule 7(a) lists a response to the pleading as permitted, then the pleading is one to which a response is required under Rule 15(a). Advisory Committee Notes, 2009 Amendments to Fed. R. Civ. P. 15. Because Rule 7(a) permits answers to complaints, a complaint is a pleading to which a responsive pleading is required. Fed. R. Civ. P. 7(a)(2).

Here, the plaintiff’s complaint is a pleading to which a response is required. The defendant has filed a motion for a more definite statement under Rule 12(e), which, while not technically a pleading, starts the time frame within which the plaintiff has to amend her complaint once as of right. Because less than 21 days have passed since the defendant filed the Rule 12(e) motion for a more definite statement, the plaintiff may amend her complaint as of right and does not need consent from the defendant or leave from the court. See Fed. R. Civ. P. 15(a)(2).

Question 34

A plaintiff sued a defendant in federal district court. Two months after pleadings had closed, the plaintiff wanted to add a claim under state law. The state statute that created the plaintiff’s claim required that any cause of action be filed within two years of a claimant’s injury. The plaintiff had filed her original complaint in the district court 23 months after her injury. The state statute did not permit relation back of amended pleadings. The plaintiff moved for leave to amend to add the claim to her complaint.

Which of the following best explains the district court’s denial of the plaintiff’s motion for leave to amend her complaint?

Answer 34

The proposed amendment is futile.

Rule 15 is strongly biased in favor of granting motions for leave to amend. See Fed. R. Civ. P. 15(a)(2). The U.S. Supreme Court has listed several factors as justifying denying a motion for leave to amend, including: undue delay, the movant’s bad faith or dilatory motive, repeated failure to cure deficiencies with amendments previously allowed, undue prejudice to the opposing party, and the amendment’s futility.

A proposed amendment is futile if the amendment, even if allowed, would not correct the deficiencies in the movant’s pleading. Similarly, a proposed amendment is also futile if it seeks to add a claim that would be frivolous or could not otherwise withstand a motion to dismiss. .

Here, the limitations period for the state-law claim that the plaintiff seeks to add via amendment has expired, and the state statute does not permit relation back of amendments. For this reason, the state-law claim the plaintiff seeks to add via amendment would not survive a motion to dismiss. Therefore, the district court’s decision to deny the plaintiff’s motion for leave to amend is best explained by the futility of adding the claim.

Question 35

A plaintiff sued a defendant in federal district court after the plaintiff was injured in an automobile accident. The plaintiff alleged in her complaint that the defendant acted negligently while driving. The plaintiff also alleged that at the time of the accident, the defendant’s car was traveling 45 miles per hour in an area with a speed limit of 20 miles per hour. The defendant moved to dismiss the plaintiff’s complaint for failure to state a claim.

Which of the plaintiff’s allegations, if any, must the court accept as true in deciding the defendant’s motion to dismiss?

Answer 35

The court must accept as true the plaintiff’s allegations regarding the speed of the defendant’s car and the speed limit. In deciding a motion to dismiss for failure to state a claim, a court must accept a party’s factual allegations as true. A court is not required to accept as true conclusory legal allegations that simply label the elements of a claim.

Question 36

In a diversity action in federal court, a plaintiff sued a defendant for personal injury, alleging damages of “up to $1 million” for the defendant’s negligent driving. The defendant filed an answer denying liability and disputing the plaintiff’s damages. The case was then set for trial.

On the date of the trial, the defendant failed to appear. The clerk of the court docketed the defendant’s default, and the plaintiff requested that the clerk enter a default judgment for $1 million against the defendant. The plaintiff’s request was accompanied by an affidavit explaining the plaintiff’s calculation of $1 million based on an itemized list of hospital bills and rehabilitation expenses related to the plaintiff’s injuries.

Would it be proper for the clerk to enter a default judgment of $1 million against the defendant?

Answer 36

No, because the plaintiff’s requested damages cannot be considered a sum certain.

Question 37

Your client files a “creative” complaint against Defendant Danny Doo, which alleges fraud and conspiracy. You’re seeking damages for an investment gone wrong. Danny files a 12(b)(6) motion in a timely manner, saying that your complaint fails to state a claim.

You file a brief in opposition of Danny’s motion and then argue against the motion in hearing. The judge does not seem to agree with your arguments, making it no secret of her disdain for your complaint and legal theories… she’s signaling that she intends to grant Doo’s motion.

Is it too late to get another judge?

Answer 37

Not necessarily, under Rule 41(a). You could voluntarily dismiss the complaint without prejudice to suing on the same claim(s) att another time or in another court under some circumstances.

There are practical reasons to voluntarily dismiss, including forum shopping or judge shopping in certain circumstances.

Question 38

What does it mean if a notice of voluntary dismissal is timely?

Answer 38

“Before the opposing party serves either an answer or a motion for summary judgment.”

When a notice is timely, it “invites no response from the district court and permits no interference by it.” The notice automatically closes the file on its own, depriving the court of jurisdiction and action is no longer pending.

Question 39

True or false: Under Rule 56(c)(1)(A), all discovery materials automatically qualify for consideration on summary judgment

Answer 39

False. They must be admissible under the rules of evidence before they are properly considered as part of the record for summary judgment.

It’s designed that way to avoid a trial that would be unnecessary. If courts could consider evidence that could not subsequently be admitted at trial, the purpose of the motion for summary judgment would be defeated.

Question 40

How is a motion for summary judgment different than Rule 12(b)(6) motion for failure to state a claim?

Answer 40

12(b)(6) asks the court to make a decision as a matter of law on presumptively undisputed facts, like a motion for summary judgment. BUT the record for decision is different.

12(b)(6) is decided strictly on factual allegations contained in the complaint which are presumed true for purposes of the motion.

Summary judgment motion is decided on the record of facts contained in the supporting materials AND any opposing materials that would be admissible at trial.

Question 41

Why would courts be less reluctant to grant a Rule 50(b) renewed motion versus a 50(a) directed verdict motion?

Answer 41

Under 50(b) there is no need for a retrial because the jury has already heard the case and rendered a verdict, that the judge renders unsupported.

Under 50(a) a retrial could be likely

Question 42

A plaintiff presents her case at trial and fails to offer evidence proving that defendant caused the harm in her claim. After plaintiff rests her case, defendant’s lawyer leaps from her chair and says, “Your honor, we move for judgment as a matter of law under Rule 50(a)”

Is this sufficient?

Answer 42

No. Rule 50(a) doesn’t require a writing but does require moving party to specify the law and facts that entitle movant for judgment.

This exists so that cases are decided on their merits, not on an inadvertent omission during trial. Here, Plaintiff would be deprived of the opportunity to know why her case was deficient and present additional evidence to submit to factfinder or motion is granted.

Question 43

Which of the following may a judge take testimony on a motion for a new trail, deciding whether the jury has acted improperly:

A) Jury misunderstood the judge’s instructions on proximate causation where the foreman insisted it meant the same thing as direct causation

B) Jury consulted Webster’s Dictionary to decide what proximate causation meant

C) Jury speculated on whether awarding a large verdict would impact insurance rates

D) Juror read a passage from the Bible about money-lending to the jury in an action on a debt

Answer 43

A) Not extraneous, as it occurred during deliberation and it bears on the jurors’ processes. This would likely cause more problems than solve for the court, so this would not be brought up as improper jury actions.

B) Extraneous information, outside the record, is involved. However, the dictionary is often a common experience of a juror. A court would not likely find this to be prejudicial or improper behavior.

C) Speculation on the juror’s part can go either way, where some courts barr evidence of general speculation. Others may say that speculation is party of a jury’s common experience.

D) The Bible is still party of many people’s common experiences. It is not unusual for a juror to carry a Bible with them to court.

Question 44

During trial of a complex fraud case, the federal district court admitted testimony from the plaintiff’s expert witness over the defendant’s objection. The expert testimony was the most significant piece of evidence supporting the plaintiff’s case. The defendant’s lawyer impeached the expert in several key areas, using directly contradictory evidence. The jury nevertheless returned a verdict for the plaintiff. The defendant moved for a new trial on the ground that admitting testimony from the plaintiff’s expert was prejudicial error.

May the defendant challenge the district court’s evidentiary rulings in a motion for a new trial?

Answer 44

Yes, because a motion for a new trial is a correct vehicle to challenge a court’s evidentiary rulings.

The Federal Rules of Civil Procedure do not specifically list grounds upon which a party may seek a new trial; rather, they allow a district court to grant a motion for a new trial on any ground for which new trials were granted prior to the rules’ codification. Wright & Miller, 11 Fed. Prac. & Proc. Civ. § 2805 (3d ed. & West Apr. 2019). One principal reason parties use to support a motion for a new trial is that the district court committed prejudicial error in the way the trial was conducted. For example, parties seeking a new trial may argue that the district court erroneously admitted or excluded evidence, and that this error impacted the jury’s verdict. Id.

Here, the defendant may challenge the district court’s decision to admit testimony from the plaintiff’s expert in a motion for a new trial. The defendant may argue that the district court’s decision was legally incorrect, and that the error was prejudicial because the decision to admit or exclude the expert testimony, which was a key component of the plaintiff’s case, likely impacted the trial’s outcome.

Question 45

A plaintiff sued a defendant in federal district court. The defendant served an answer 15 days after being served with the complaint. The defendant’s answer denied all allegations in the plaintiff’s complaint but did not assert a counterclaim or any other claim for relief. The district court did not order a reply. Ten days after filing and serving the answer, the defendant realized his pleading contained several errors. The defendant wanted to file an amended answer that corrected the mistakes he had noticed.

How long, if at all, does the defendant have to amend his counterclaim without consent from the plaintiff or leave from the district court?

Answer 45

11 days.

A party may amend its pleading once as of right (without leave from the court or its opponent) within 21 days of serving the pleading or, if the pleading is one to which a responsive pleading is required, the earlier of either (1) 21 days after service of the response, or (2) 21 days after service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). To determine whether a pleading is one to which a response is required under Rule 15(a), one looks to the text of Rule 7(a); if Rule 7(a) lists a response to the pleading as permitted, then the pleading is one to which a response is required under Rule 15(a)

Therefore, an answer is a pleading to which a response is required if the answer contains a counterclaim or the court orders a reply. Fed. R. Civ. P. 7(a)(7).

Here, the defendant’s answer denied all allegations in the plaintiff’s complaint. The answer did not include a counterclaim or other claim for affirmative relief, and the district court did not order a reply. Therefore, the defendant’s answer is not a pleading to which a response is required. Because a response to the answer is not required, the defendant has 21 days from serving the answer to amend it once as of right, without consent from the plaintiff or leave from the district court. Ten days have passed since the defendant served the answer, so the defendant has 11 days remaining within which to file an amended answer that corrects the mistakes the defendant noticed.

Question 46

What are the elements necessary to invoke attorney-client privilege?

Answer 46

1) A communication
2) made between privileged persons
3) In confidence
4) For the purpose of obtaining or providing legal assistance for the client…

Question 47

An insurance claims adjuster prepares a report deciding whether to pay out on a claim. Is this protected work product?

Would it make a difference if the preparation of the report took place after the insurer had denied coverage on a claim?

Answer 47

Because it is the business of insurance companies to adjust claims made under their policies, this would likely not be protected work product by itself.

But if the report had been produced after a claim was denied, litigation is more likely imminent because the disappointed claimant had no other recourse against the insurer. This report was probably prepared in preparation of a lawsuit and thus is protected.

Question 48

A plaintiff sued her former employer in federal district court for employment discrimination. The plaintiff had worked in the employer’s human resources (HR) department for the five years preceding the lawsuit. According to the complaint, male employees in HR advanced more rapidly at the former employer than similarly qualified female employees. During discovery, the plaintiff sought production of all records maintained on employee promotion and advancement.

How, if at all, should the former employer respond to the plaintiff’s request for production?

Answer 48

The former employer should object to the request as lacking reasonable particularity.

A request for production must describe with reasonable particularity each item or category of items to be inspected. Fed. R. Civ. P. 34(b)(1)(A). In general, a request with reasonable particularity should place a responding party and the court on notice about what must be produced and what need not be produced. The most important factor in determining whether a request has reasonable particularity is how familiar the requesting party is with the materials she is seeking.

Here, the former employer should object to the plaintiff’s request as lacking reasonable particularity. A request for all records relating to employee promotion and advancement is very broad. The request on its fact contains no time limit and would appear to encompass all records since the former employer began operations, not just the five years during which the plaintiff was employed.

Moreover, all records on employee promotion and advancement would appear to include any records the former employer maintained about how employees were generally promoted, as well as records on specific employees. The plaintiff worked in the HR department and would therefore possess a degree of familiarity with the kinds of records the employer kept on employee promotion and advancement. Therefore, the plaintiff is likely capable of stating her request more specifically, so that both the former employer and the court may determine what information she is seeking. For example, the plaintiff could identify a type of document (i.e., quarterly performance reviews), types of data maintained in HR (i.e., average tenure of HR employees at the time of promotion to a given position), or records maintained by a particular group or division within HR.

Question 49

A plaintiff served a complaint for patent infringement and 10 discovery requests on its competitor. Both the complaint and the requests were served together with the summons on the competitor’s registered agent in the state. The discovery requests sought information regarding the competitor’s product that the plaintiff accused of infringement. The competitor had maintained the details of its product as trade secrets. Altogether, the requests sought more than 10,000 pages of documents.

Does the competitor have to produce the documents?

Answer 49

No, because discovery has not yet begun.

The exact date on which discovery begins may vary from case to case, but in general, parties do not engage in much discovery before the pleadings are closed. With a few exceptions, Rule 26 of the Federal Rules of Civil Procedure prohibits a party from seeking discovery until the parties have met and conferred in an initial Rule 26(f) conference. Fed. R. Civ. P. 26(d). District courts may promulgate local rules, and individual judges may issue standing orders, which specify a more precise time frame for when discovery may begin. However, in general, discovery does not begin as soon as the plaintiff has served a complaint.

Therefore, the competitor here does not yet have to respond to the plaintiff’s discovery requests, because discovery has not yet begun. The earliest the competitor would be considered served with the requests is at the parties’ Rule 26(f) conference. See Fed. R. Civ. P. 26(d)(2).

Question 50

A motorcyclist was involved in an accident with a truck driver and a minivan driver. The motorcyclist suspected that the truck driver would be able to pay a greater sum of damages than the minivan driver. Therefore, the motorcyclist chose to sue only the truck driver, and not the minivan driver, for negligence in federal district court.

The case received extensive local media coverage, and the minivan driver was aware that the lawsuit was ongoing. The truck driver’s discovery responses, served three months after the complaint was filed, indicated that he was insolvent and would not be able to pay even minimal compensatory damages. The motorcyclist sought to file an amended complaint changing the defendant from the truck driver to the minivan driver. The limitations period had since expired on the truck driver’s claim, but the applicable state statute permitted relation back.

Is an amended complaint adding the minivan driver likely to relate back to the filing date of the original complaint?

Answer 50

No, because the motorcyclist did not make a mistake about the minivan driver’s identity in omitting her from the original complaint.

An amendment that seeks to change the defending party will relate back to the date of the original complaint if: (1) the amendment arises out of the same conduct, transaction, or occurrence as the original pleading, and (2) within 120 days of the original complaint, (a) the added defendant receives notice of the complaint (such that the new defendant will not be prejudiced by having to defend the case on the merits), and (b) the added defendant knew or should have known the action would have been brought against the defendant, but for a mistake concerning the defendant’s proper identity. Fed. R. Civ. P. 15(c)(1)(C).

Here, the motorcyclist did not make any mistake about the minivan driver’s identity in omitting her from the original complaint. Rather, the motorcyclist deliberately chose to exclude the minivan driver from the original complaint because the motorcyclist suspected that the truck driver was able to pay a greater amount of damages. Because there is no mistake here about the minivan driver’s identity, the amended complaint seeking to add the minivan driver is not likely to relate back to the original complaint.

Question 51

After two business partners had a falling out, the senior partner sued the junior partner in federal district court. The complaint alleged that the junior partner had breached the partnership agreement by failing to meet his required targets for new-business generation. The litigation grew both protracted and heated. After losing a particularly hard-fought battle during discovery, the senior partner asked his lawyer about adding a new claim for conversion against the junior partner. The new conversion claim would be based on the junior partner’s habit of falsifying records to bill personal expenses back to the partnership by claiming they were business expenses. The applicable limitations period on the conversion claim had expired one month after the original complaint was filed. The state law defining the limitations period did not permit relation back of amendments.

Will an amended complaint adding the conversion claim relate back to the date of the original complaint?

Answer 51

No, because the new claim is based on different facts than the original complaint.

An amended pleading that adds new claims against a litigant who is already a party to the action will relate back to the date of the original pleading if: (1) the applicable limitations periods for the added claims permit relation back, or (2) the added claims arise out of the same conduct, transaction, or occurrence that was set out (or attempted to be set out) in the original pleading. Fed. R. Civ. P. 15(c)(1)(A), (B).

Here, the applicable limitations period for the added conversion claim does not permit relation back. Therefore, the only remaining way in which the amendment might relate back is if the added claim is based upon the same conduct, transaction, or occurrence as that set out (or attempted to be set out) in the original complaint. The original complaint alleged that the junior partner breached the partnership agreement by failing to bring in sufficient new business. The added conversion claim challenges an entirely separate set of conduct that the junior partner allegedly engaged in—namely, fraudulently submitting personal expenses as business expenses. Because the claim that the senior partner seeks to add via amendment does not arise out of the same conduct, transaction, or occurrence as that in the original complaint, the amended complaint is not likely to relate back.