Civil Procedure Workshop Flashcards
A citizen of State A filed a breach of contract
action against a citizen of State B in a State A
state trial court. The State B defendant timely
and properly removed the action to the United
States District Court for the District of State A.
The defendant then filed a motion to dismiss the
action based on insufficient service of process.
Following a hearing, the court found that service
was proper and denied the motion. The defendant then filed her answer, responding to the
merits of the complaint and asserting that the
case should be dismissed on the grounds that
another action was pending between the same
parties for the same cause in a State B state
court. The State A Rules of Civil Procedure
provide that a party waives the right to seek
dismissal on that ground if the party files a
pre-answer motion to dismiss and does not assert
that ground in the motion.
Should the federal court hold that the defendant has waived the right to seek dismissal based
on the pendency of the same cause in another
court?
(A) Yes, because this action was commenced
in a State A state court, so the federal court
must apply State A law.
(B) Yes, because this action is in a federal
court in State A on the basis of the court’s
diversity of citizenship jurisdiction, so the
federal court must apply State A law.
(C) No, because this issue is unlikely to affect
the outcome of the action or to create
forum-shopping, so the federal court should
apply federal law, under which the defendant has not waived this defense.
(D) No, because this issue is governed by the
Federal Rules of Civil Procedure, under
which the defendant has not waived this
defense
The defendant has not waived this defense.
Unlike the state rule here, Federal Rule of Civil Procedure 12 does not require the defendant to raise the defense that another action is pending between
the parties in the first responsive pleading. While the federal court exercising diversity of citizenship subject matter jurisdiction must apply state substantive law (here, State A law), applicable
Federal Rules of Civil Procedure supersede state law in federal court as long as the rule comports
with the requirements of the Rules Enabling Act (i.e., the rule governs practice and procedure
and does not modify or abridge substantive rights).
(A) and (B) are incorrect because they are too
broad. The federal court need not apply State A procedural law. (C) is incorrect because, if the
rule in question is on point and clearly procedural, it is simply applied. There is no need to determine if its application would affect the outcome of the case.
A researcher and an analyst had employment contracts with a corporation. The corporation fired them because it believed they had
conspired to give its trade secrets to a competitor. Knowing that the conspiracy allegations
were not true, the researcher and the analyst
sued the corporation in federal district court
for breach of their employment contracts. The
researcher seeks $100,000 in damages and the
analyst seeks $50,000. They are both citizens of
State A. The corporation is incorporated in State
B, and its principal place of business is in State
B.
Does the federal district court have subject
matter jurisdiction over both of the claims?
(A) Yes, the court has diversity of citizenship
jurisdiction over both claims because the
amounts of their related claims may be
aggregated to satisfy the amount in controversy requirement.
(B) Yes, the court has diversity of citizenship
jurisdiction over the researcher’s $100,000
claim and supplemental jurisdiction over
the analyst’s $50,000 claim.
(C) No, the court does not have subject matter
jurisdiction over the analyst’s $50,000
claim because the claims of both plaintiffs may not be aggregated to satisfy the
amount in controversy requirement.
(D) No, the court does not have subject matter
jurisdiction over either claim because the
breach of contract claim is based on state
law.
The court has jurisdiction over both claims but under different bases. Generally, every claim
in federal court must have a basis for federal subject matter jurisdiction. There are three main
flavors of federal subject matter jurisdiction—diversity of citizenship jurisdiction, federal question jurisdiction, and supplemental jurisdiction.
Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff is a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000.
A natural person’s citizenship is the state that is the person’s permanent home. A corporation is
a citizen of every state in which it is incorporated and the one state in which it has its principal
place of business. The amount in controversy is determined by the plaintiff’s good faith allegation. In the instant case, the facts state that the researcher and the analyst are citizens of State A, and that the corporation was incorporated and has its principal place of business in State B. As a result, complete diversity exists.
The researcher claims $100,000, presumably in good faith.
Therefore, the researcher may claim diversity jurisdiction to have his claim heard in federal
court. The analyst, on the other hand, claims only $50,000 in damages; thus, he may not invoke
diversity jurisdiction to have his claim heard in federal court.
However, the analyst might invoke
supplemental jurisdiction to have his claim heard in federal court. When the federal court has
subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction
over related claims that derive from the same common nucleus of fact and are such that a plaintiff
would ordinarily be expected to try them in a single judicial proceeding. Here, the analyst’s claim
is derived from the corporation’s wrongful termination of both plaintiffs based on an allegation
that they conspired to sell a trade secret to a competitor.
As a result, the analyst’s claim springs
from the same common nucleus of fact as the researcher’s claim. There are several restrictions on
the use of supplemental jurisdiction when joined with a claim based solely on diversity; however, a
co-plaintiff with a below-limit claim generally can use supplemental jurisdiction to have his claim
heard in federal court so long as the co-plaintiff’s presence in the suit does not destroy complete
diversity. Here, the analyst’s presence does not destroy complete diversity.
Thus, the analyst may invoke supplemental jurisdiction to have his claim heard in federal court, making (B) correct.
(A) is incorrect because multiple plaintiffs may not aggregate their claims against a single defendant
unless they are seeking to enforce a joint right in which they have an undivided interest.
Such a case is not presented under these facts. (C) is incorrect. Although it is true that the claims of both
plaintiffs may not be aggregated, the answer ignores the possibility of there being supplemental
jurisdiction. (D) is incorrect because state law claims may be heard in federal court under the
court’s diversity jurisdiction.
A bar prep company discovered that its
copyrighted content was being used in an
online simulated exam that its competitor was
administering in a few days. The company filed
a petition for an ex parte order to direct the
competitor to immediately remove that content
from its website. The company submitted an
affidavit specifying why immediate and irreparable injury will result if the exam is administered, and offered to provide security for any
costs or damages incurred by the competitor if
it was determined that the order was wrongfully
issued.
Should the court issue the order?
(A) Yes, because the company submitted an affidavit with specific facts showing immediate and irreparable injury.
(B) Yes, because the competitor will receive
notice of the order once it is issued by the
court.
(C) No, because a court cannot issue an injunction unless the adverse party has notice of
the hearing.
(D) No, because the company has not provided
sufficient certification for obtaining an ex
parte order.
The court should not issue the ex parte order. A temporary restraining order may be granted by
a court when it is necessary to prevent irreparable injury to a party, and the injury will result
before a preliminary injunction hearing can be held. As a general rule, notice of the hearing
for the issuance of the order must be given before it is issued.
However, a court may grant an ex parte temporary restraining order without notice of the hearing to the adverse party if the moving party does the following: (i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse
party can be heard in opposition; (ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and (iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained.
Here, the company alleged irreparable injury and offered to provide security, but nothing in the facts indicates that it certified efforts to give notice to the competitor or why notice should not be required. The facts do not establish that it is impossible to provide notice to the competitor
before a restraining order is issued.
(A) is incorrect because the company’s affidavit is not enough to justify the issuance of an ex parte order, as discussed above.
(B) is incorrect because, while
actual notice of the order also is required, notice of the hearing is required as well unless the three
requirements stated above are met.
(C) is incorrect because it is too broad. A court may issue an ex parte order without prior notice to the adverse party if the three requirements stated above are
met
The plaintiff in a negligence case was injured
in a car accident with the defendant. The plaintiff’s attorney retained a physician to examine
the plaintiff and to testify regarding the plaintiff’s injuries. After the physician examined
the plaintiff, the plaintiff’s attorney discussed
the physician’s findings with the physician.
The plaintiff’s attorney and the physician also
discussed what the physician should include in
the expert witness report that will be provided
to the defendant. The defendant then conducted
a deposition of the physician. During the deposition, the defendant’s attorney asked the physician
to describe what was said in his conversations
with the plaintiff’s attorney. The plaintiff’s
attorney objected to those questions.
Are the defendant’s questions regarding the
plaintiff’s attorney’s discussions with the physician properly subject to discovery?
(A) No, because the communications between
the plaintiff’s attorney and the physician
are protected from discovery under the
work product doctrine.
(B) No, because the communications between
the plaintiff’s attorney and the physician are
protected by the attorney-client privilege.
(C) Yes, because the attorney does not represent
the physician and therefore the communications between the plaintiff’s attorney and
the physician are not privileged.
(D) Yes, because the communications between
the plaintiff’s attorney and the physician are
relevant to determine the basis for opinions
and statements in the physician’s expert
report.
The discussions are not subject to discovery. Draft reports and draft disclosures of “trial” experts
are work product. Confidential communications between such experts and counsel for the party
are also generally protected under the work product doctrine, except for communications relating
to the expert’s compensation or to facts or data the attorney provided to the expert.
(B) is incorrect because, although communication between the plaintiff, attorney, and expert could conceivably fall under the attorney-client privilege, it is not as certain that communications between only the
attorney and the expert would fall under the attorney-client privilege. However, the Federal Rules
specifically exempt such communication from discovery as work product (and it is discoverable
only in extraordinary circumstances, as explained below). As a result, (A) is a better choice than
(B).
An office furniture supplier filed a breach
of contract action against a law firm in federal
district court to recover the balance due on
an account for furniture it supplied. The law
firm filed a motion to dismiss the action on the
ground that service of process was improper.
Following a hearing, the court held that service
was proper and sufficient. Two more months
passed without the law firm filing an answer.
The supplier then filed a motion to have the clerk
of court make an entry of default, and the clerk
did so.
What procedure must the supplier follow to
obtain a default judgment against the law firm?
(A) File a motion to have the clerk of court enter the default judgment, and the clerk may
do so without the law firm receiving any
further notice of the motion.
(B) File a motion to have the clerk of court
enter the default judgment, and the clerk
may do so as long as the law firm receives
additional notice of the motion for default
judgment.
(C) File a motion to have the judge enter the
default judgment, and the judge may do so
without the law firm receiving any further
notice of the motion for default judgment.
(D) File a motion to have the judge enter the
default judgment, and the judge may do so
as long as the law firm receives additional
notice of the motion for default judgment.
The judge may enter the default judgment as long as additional notice is provided to the law firm.
A defendant against whom a default is entered loses the right to contest liability.
However, the amount of damages must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages. If the defendant has “appeared,” even though he has not answered, he must be notified of the request for a default judgment by first-class mail at least seven days before the hearing on the application for a default judgment.
Appearance includes any actual formal appearance before the court and any other action that clearly indicates that the defendant intends to contest the case on the merits (e.g., the defendant’s continued settlement negotiations). Furthermore, an appearance cuts off the clerk’s ability to enter a default judgment.
(A) is incorrect because the clerk may not enter a default judgment if the defendant has appeared and, because the law firm has appeared, it must be provided with notice.
(B) is incorrect because the clerk may enter a default judgment only if the defendant has not appeared.
(C) is incorrect because the law firm must be provided with notice of the hearing for a default judgment
because it has appeared in the action.
