fed civ pro

Question 1

Under the Seventh Amendment, a party to a civil action has the right to a trial by jury with regard to

Answer 1

an action at law (i.e., an action for damages).

Question 2

If an action involves both legal and equitable claims and there are common factual issues, then

Answer 2

the jury determines the legal claims first and the court subsequently determines the equitable claims.

Question 3

Where a court is determining equitable claims following a jury’s determination on legal claims, the court is

Answer 3

The court is bound by the jury’s findings on the legal claims in determining the equitable claims.

Question 4

After the jury returns a verdict and before the jury is dismissed, the court must poll the jurors individually if

Answer 4

a party requests.

Question 5

attorney’s request to poll the jurymade after the jury had returned its special verdict and before the judge dismissed the jury is:

Answer 5

timely

Question 6

special verdict

Answer 6

a written finding made by the jury on each issue of ultimate fact

Question 7

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed by the defendant to the district court for

Answer 7

the district and division in which the state court action is pending.

Question 8

if removal is sought solely based on diversity jurisdiction, then the claim may be removed only if

Answer 8

no defendant is a citizen of the state in which the action was filed.

Question 9

For the purposes of the diversity-of-citizenship requirement, a corporation is a citizen of

Answer 9

the state of its incorporation and its principal place of business.

Question 10

A defendant who wants to remove a state court action to federal district court generally must file a ________________ with the _______________ within ______days after receipt by or service on that defendant of the __________ pleading or summons.

Answer 10

notice of appeal;
district court
30 days
initial pleading/summons

Question 11

A complaint should not be dismissed for an mere imperfect statement

Answer 11

of the legal theory.

Question 12

under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to

Answer 12

1) assert a legal theory of recovery that is cognizable at law or
2) fails to allege facts sufficient to support a cognizable claim

Question 13

In reviewing a motion to dismiss under Rule 12(b)(6), the court must identify and reject

Answer 13

legal conclusions unsupported by factual allegations.

Question 14

under Rule 12(b)(6), the court must identify and reject

Answer 14

mere conclusory statements and assertions devoid of facts

Question 15

A motion to strike is appropriate if a pleading contains

Answer 15

any insufficient defense, or redundant, immaterial, impertinent, or scandalous material.

Question 16

A motion for summary judgment occurs after

Answer 16

discovery is complete.

Question 17

A motion for judgment on the pleadings under Rule 12(c) must be made after

Answer 17

an answer is filed.

Question 18

while the amount of damages sought by a defendant in a counterclaim may be relevant in determining the court’s subject-matter jurisdiction over the counterclaim, it is not relevant in determining

Answer 18

the court’s subject-matter jurisdiction over the plaintiff’s claim.

Question 19

The fact that a corporation engages in substantial business in a state does not make the corporation

Answer 19

a citizen of that state.

Question 20

When the assignment of a claim is a business transaction rather than a collusive act to create diversity jurisdiction, the assignee is

Answer 20

the real party in interest whose citizenship determines the existence of diversity.

Question 21

When a plaintiff seeks special damages, the plaintiff is required to

Answer 21

plead such damages with specificity.

Question 22

a plaintiff is generally not required to plead

Answer 22

a defendant’s capacity.

Question 23

the burden lies on the defendant to deny capacity to contract and provide

Answer 23

supporting facts that are peculiarly within the defendant’s knowledge.

Question 24

a plaintiff is not required to plead with particularity the satisfaction of a condition precedent. Instead, a defendant who denies that such a condition has been satisfied

Answer 24

must do so with particularity.

Question 25

a plaintiff is not required to plead the absence of mistake. Instead, a defendant is required to

Answer 25

raise this issue and state with particularity the circumstances that gave rise to it.

Question 26

A temporary restraining order (TRO) may be issued without notice to the adverse party if the moving party establishes:

Answer 26

1) that immediate and irreparable injury will result prior to hearing the adverse party’s opposition,
2) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Question 27

TRO can be issued

Answer 27

ex parte

Question 28

Unlike state citizenship, citizenship in a foreign country generally does not depend on domicile but on whether

Answer 28

the individual has taken the necessary steps to become a citizen.

Question 29

An action originally filed in state court, including actions based on a state law claim, such as negligence, can generally be removed to a federal court if

Answer 29

the federal court would have originally had jurisdiction.

Question 30

The doctrine of issue preclusion, often called “collateral estoppel,” precludes the re litigation of

Answer 30

issues of fact or law that have already been necessarily determined by a judge or jury in an earlier action.

Question 31

for collateral estoppel to apply the issue sought to be precluded must be

Answer 31

1) the same as that involved in the prior action,
2) must have been actually litigated in the prior action, and
3)must have been essential to the prior valid, final judgment.

Question 32

in general, a judgment by the court, rather than a jury, can still have _____________effect in a subsequent action tried before a jury.

Answer 32

preclusive effect

Question 33

res judicata precludes a party from successive litigation of

Answer 33

an identical claim in a subsequent action.

Question 34

A federal court must generally determine whether personal jurisdiction exists as if it

Answer 34

were a court of the state in which it is situated.

Question 35

The service of a summons in a federal action establishes personal jurisdiction over a defendant “who is

Answer 35

subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.”

Question 36

“bulge provision” in the federal rules that provides for service of process on a party within 100 miles of the forum court even if

Answer 36

state law would not otherwise permit such service

Question 37

The bulge provision only applies to

Answer 37

a third-party defendant joined under Rule 14 or a required party joined under Rule 19.

Question 38

no special service of process rule with regard to

Answer 38

a declaratory judgment action.

Question 39

newly discovered evidence grounds for granting new trial

Answer 39

1) upon motion by a party;
2) newly discovered evidence;
3) existed at the time of trial
4) was excusably overlooked and
5) likely have altered the outcome of the trial.

Question 40

grounds for granting new trial include:

Answer 40

1) damages awarded were excessive
2) verdict is against the clear weight of the evidence
3) newly discovered evidence

Question 41

a motion for a new trial may be made and granted regardless of whether

Answer 41

case is tried before a jury or only a judge.

Question 42

If no responsive pleading is required, a party may amend a pleading once as of right no later than

Answer 42

21 days after serving it.

Question 43

If a responsive pleading is required, the party may amend within

Answer 43

1) 21 days of service of the responsive pleading or
2) within 21 days of being served with a motion to dismiss under Rule 12(b)
(whichever is earlier)

Question 44

In an action that arises under state law and is based on diversity jurisdiction, the federal district court should usually apply the long-arm statute of the state in which

Answer 44

the court is located in determining personal jurisdiction over the defendant.

Question 45

A party is considered necessary if

Answer 45

the party’s absence would leave the existing parties subject to a substantial risk of multiple or inconsistent obligations.

Question 46

Whether the court has personal jurisdiction over a person who has not been joined as a party can dictate whether

Answer 46

the court can order the joinder of the person as a party, but does not determine whether that person is a necessary party.

Question 47

Whether the court lacks subject matter jurisdiction over a person who has not been joined as a party can dictate whether

Answer 47

the court can order the joinder of the person as a party, but does not determine whether that person is a necessary party.

Question 48

Generally, an issue that constitutes a necessary component of the decision reached will be considered

Answer 48

essential to the judgment.

Question 49

Unlike claim preclusion, issue preclusion does not require

Answer 49

strict mutuality of parties, but only that the party against whom the issue is to be precluded must have been a party to the original action.

Question 50

issue preclusion requires that the party against whom the issue is to be precluded must have been

Answer 50

a party to the original action

Question 51

Federal-question jurisdiction exists only when an issue of federal law is presented in

Answer 51

the plaintiff’s complaint (the “well-pleaded complaint” rule).

Question 52

Under the well pleaded complaint rule, the determination of jurisdiction must be made by considering only

Answer 52

the necessary elements of the plaintiff’s cause of action, and not potential defenses.

Question 53

time limit for filing a notice of removal

Answer 53

30 days

Question 54

no requirement that notice of removal is filed before

Answer 54

defendant files an answer

Question 55

federal-question jurisdiction may not be established based on

Answer 55

the assertion of a federal-law defense in an answer (this is the well-pleaded complaint rule).

Question 56

where the court does not have diversity jurisdiction over a counterclaim because AIC is not satisfied; the court may exercise supplmental JD if:

Answer 56

a counterclaim arises out of the same case or controversy as the original claim

Question 57

Unless a party timely and properly objects on the record to an erroneous instruction given or proposed to be given by the court or to the court’s failure to give an instruction timely requested by a party, the party generally cannot

Answer 57

raise the matter on appeal.

Question 58

if an objection to a jury instruction is not preserved for appeal properly, the appellate court can address a

Answer 58

plain error with regard to the jury instructions that affects substantial rights.

Question 59

Although the instructions provided to the jury are generally subject to the trial judge’s discretion, jury instructions are generally not reviewable by an appellate court absent

Answer 59

a proper and timely objection by a party.

Question 60

Federal Rule of Civil Procedure 51 does recognize the appellate court’s right to address an erroneous jury instruction under

Answer 60

the plain error doctrine

Question 61

is the court required to accept the proposed jury instructions of either party.

Answer 61

NO

Question 62

under Federal Rule of Civil Procedure 51, a federal district court may require a party to submit its proposed jury instructions at

Answer 62

any reasonable time before the close of evidence, including before trial.

Question 63

A motion for summary judgment must be granted if

Answer 63

1) there is no genuine dispute as to any material fact and
2) the moving party is entitled to judgment as a matter of law.

Question 64

The standard for granting a summary judgment does not depend on

Answer 64

whether a jury trial has been demanded; it applies to all civil actions

Question 65

If the standard for motion for summary judgment is met, what is the court required to do?

Answer 65

It must grant the motion

Question 66

Under Rule 11, the court generally has discretion to impose a monetary sanction against the plaintiff’s attorney for violating

Answer 66

Rule 11(b).

Question 67

under Rule 11(c), the court is not permitted to impose a monetary sanction against a represented party for violating the requirement that

Answer 67

legal contentions be warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

Question 68

the movant with respect to the summary judgment motion, has the burden of

Answer 68

persuasion to show that there is no genuine dispute as to any material fact.

Question 69

In deciding a motion for summary judgment, the court is required to construe all evidence in the light most favorable to

Answer 69

the nonmoving party

Question 70

Once the movant makes a prima facie showing that summary judgment is appropriate, the burden of proof shifts to the opposing party to set forth specific evidence showing

Answer 70

the existence of a genuine issue of fact for trial.

Question 71

A case will be tried by the court without a jury if

Answer 71

no right to a jury trial exists (or if it has been waived).

Question 72

Where the court is the finder of fact; it must “find and state”:

Answer 72

find the facts specially and state its conclusions of law separately.

Question 73

The findings and conclusions of the court as fact-finder may be “stated or appear”

Answer 73

findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court

Question 74

The court is not required to state findings or conclusions when ruling on a motion under

Answer 74

Rule 12 (motions against the complaint) or 56 (summary judgment) or, unless the rules provide otherwise, on any other motion.

Question 75

In a nonjury trial, a judge must generally state his findings of fact and conclusions of law on the record or in a written opinion, even if not requested to do so by one of the parties, unless

Answer 75

the determination involves a motion under Rule 12.

Question 76

For purposes of diversity jurisdiction, the value of a single plaintiff’s claims against each of multiple defendants cannot be aggregated if the claims are

Answer 76

separate and distinct and the defendants are not jointly liable with respect to the claims.

Question 77

while a federal district court has subject-matter jurisdiction when the action involves a federal question, a federal district court can also have subject-matter jurisdiction over a claim based on

Answer 77

state law when diversity jurisdiction exists.

Question 78

Under the doctrine of issue preclusion, when an issue is actually litigated and is essential to the judgment of a court of competent jurisdiction, that determination is conclusive against

Answer 78

a party to the prior proceeding in a subsequent suit based on a different claim.

Question 79

unlike claim preclusion, issue preclusion can be applicable to a position taken by a party in a prior action, even though

Answer 79

the other party to the current action was not a party to the prior action. Mutuality of parties is not required.

Question 80

issue preclusion can apply to

Answer 80

a factual determination made in another case as well as a legal one.

Question 81

A court, upon motion or upon its own initiative, may order a pleading containing an insufficient defense to be

Answer 81

stricken.

Question 82

A motion for judgment on the pleadings allows a court to dispose of a case when

Answer 82

1) the material facts are not in dispute and
2) a judgment on the merits can be achieved based on the content of the pleadings.

Question 83

In answering the complaint, can the defendant assert a counterclaim against the plaintiff in its answer?

Answer 83

Yes, it doesnt need to be pleaded separately

Question 84

a party may raise separate claims or defenses, regardless of

Answer 84

consistency.

Question 85

traditionally, voluntary appearance of the defendant in court automatically subjected the defendant to personal jurisdiction, unless

Answer 85

he was present with the express purpose of objecting to personal jurisdiction (called a “special appearance”). (no longer the rule, been abolished)

Question 86

Modern Federal Rule: the objection is waived if the personal jurisdiction objection is not raised in the first of

Answer 86

(i) a Rule 12 motion, if raised before the answer; or (ii) the answer itself.

Question 87

Voluntary appearance of the defendant in court to defend the claim on the merits automatically subjects the defendant to

Answer 87

the personal jurisdiction of the court, unless she is present in court to object to personal jurisdiction.

Question 88

Appearance for the express purpose of making a jurisdictional objection is

Answer 88

not consent to the court’s jurisdiction over her.

Question 89

One of the requirements for the use of issue preclusion is that the party against whom it is to be asserted in the current lawsuit

Answer 89

was a party (or one in privity with a party) to the prior lawsuit.

Question 90

When a jury is instructed to deliver both a general verdict and to answer special interrogatories, if the answers to the interrogatories are consistent with each other but not with the general verdict, the court has the option of

Answer 90

approving a judgment that is consistent with the answers, notwithstanding the general verdict.

Question 91

when the jury’s answers to those interrogatories conflict with each other, the court

Answer 91

cannot enter a judgment and cannot approve the entry of the general verdict.

Question 92

when the jury’s answers in a general verdict and special interrogatories are inconsistent, the court can either:

Answer 92

set aside the verdict and ask the jury to reconsider the issue, or alternatively order a new trial.

Question 93

Generally a court may not order the entry of a judgment that is contrary to a jury’s general verdict, unless:

Answer 93

ruling on a party’s renewed motion for judgment as a matter of law

Question 94

When a jury is instructed to return a general verdict as well as answer special interrogatories and the jury’s answers to special interrogatories conflict with each other, the court does not have the discretion to

Answer 94

order the entry of the jury’s general verdict—it cannot enter judgment.

Question 95

Federal Rule of Civil Procedure 49 specifically permits the use of

Answer 95

special interrogatories along with a general verdict.

Question 96

In order for claim preclusion to apply with respect to a prior court decision, the decision must have been

Answer 96

1) a valid, final judgment on the merits and
2) the prior action and the current action must involve sufficiently identical parties and causes of action.

Question 97

By federal statute, a federal court must give full faith and credit to a ________________________.

Answer 97

state court judgment

Question 98

When determining the effect of a dismissal with prejudice by a state court, a federal statute requires the federal court to

Answer 98

give the state court judgment full faith and credit.

Question 99

while the Full Faith and Credit Clause of the U.S. Constitution only applies to the enforcement of the judgment of one state court by the courts of another state,

Answer 99

a federal statute requires a federal court to give the same effect to judgment by a state court.

Question 100

In order to take advantage of the relaxed subject matter jurisdictional rules of the Class Action Fairness Act (CAFA), the amount-in-controversy must

Answer 100

exceed $5 million.

Question 101

the CAFA requires that the class contain at least

Answer 101

100 members.

Question 102

While most class actions require that none of the class representatives be a citizen of the same state as any of the defendants, only _____________________ is required under the CAFA.

Answer 102

minimal diversity

Question 103

minimal diversity under the CAFA requires

Answer 103

Only one class member must be a citizen of a state of which none of the defendants is a citizen.

Question 104

while most class actions require that at least one member of the class have damages in excess of $75,000, under the CAFA

Answer 104

there is no requirement that any member of the class have such damages.

Question 105

The CAFA amount-in-controversy requirement is based on

Answer 105

the total amount of damages sought by all class members.

Question 106

In order for a defendant to be subject to the jurisdiction of a court, the defendant must have

Answer 106

sufficient minimum contacts with the forum state.

Question 107

a single contact can be sufficient if

Answer 107

the cause of action is based on that contact

Question 108

an out-of-state corporation is not subject to personal jurisdiction solely because of contacts in the state by

Answer 108

an independent contractor.

Question 109

Contacts by a nonresident employer’s agents or employees, are generally imputed to the employer when

Answer 109

the agent or employee is acting within the scope of the agency or employment.

Question 110

When a defendant corporation is not subject to the general jurisdiction of the forum court, the corporation may still be subject to

Answer 110

specific jurisdiction.

Question 111

When a cause of action arises out of or closely relates to a defendant’s contact with the forum state,____________ jurisdiction may be warranted over that action; even if that contact is the defendant’s _________contact with the forum state.

Answer 111

specific jurisdiction;
only contact

Question 112

To determine whether the corporation is subject to a state’s general jurisdiction, the proper inquiry is whether a foreign corporation’s affiliations with the forum state are

Answer 112

so “continuous and systematic” as to render the corporation essentially “at home” in the forum state.

Question 113

A corporate defendant is at home in the state of

Answer 113

the corporation’s place of incorporation and, if different, the state of its principal place of business.

Question 114

In exceptional cases, a corporate defendant’s operations in another forum may be so substantial and of such a nature as to render the corporation

Answer 114

at home in that state.

Question 115

The domicile of a shareholder, even a majority shareholder, in a state is not imputed to the corporation unless

Answer 115

the corporation is merely the alter ego of the shareholder or the shareholder is acting as the corporation’s agent.

Question 116

a defendant must respond to a complaint either by

Answer 116

an answer or pre-answer motion within 21 days of service of complaint; unless defendant seeks and is granted additional time in which to respond.

Question 117

despite the language of rule 12(b), a motion to dismiss based on lack of personal jurisdiction may be filed after an answer is filed when

Answer 117

the answer pleads this defense

Question 118

—(i) causing tortious injury in Virginia by an act or omission outside Virginia, if the defendant regularly does business or derives substantial revenue from goods used or consumed or services rendered in Virginia

Answer 118

defendant’s conduct that permits a Virginia court to acquire long-arm jurisdiction over that defendant

Question 119

(ii) causing injury in Virginia to any person by breach of warranty expressly or impliedly made in the sale of goods outside Virginia when the defendant might reasonably have expected such person to use, consume, or be affected by the goods in Virginia (provided that he also regularly does business or derives substantial revenue from goods used or consumed or services rendered in Virginia);

Answer 119

defendant’s conduct that permits a Virginia court to acquire long-arm jurisdiction over that defendant

Question 120

using a computer or computer network located in Virginia.

Answer 120

defendant’s conduct that permits a Virginia court to acquire long-arm jurisdiction over that defendant

Question 121

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed by the defendant to

Answer 121

the district court for the district and division in which the state court action is pending.

Question 122

In general, the right of removal is determined by

Answer 122

the pleadings filed as of the time of the filing of the petition of removal.

Question 123

when filing for removal in diversity cases, diversity must exist at the time of filing

Answer 123

the original action as well as at the time the notice of removal is filed, unless the plaintiff dismisses a party who would have destroyed diversity jurisdiction.

Question 124

An individual is a domiciliary of the state in which she is

Answer 124

present and intends to reside for an indefinite period.

Question 125

a corporations principal place of business, which is

Answer 125

the “nerve center” of the corporation.

Question 126

The nerve center is generally the location from where

Answer 126

the high-level officers direct, control, and coordinate the activities of the corporation, which typically is the corporate headquarters.

Question 127

for diversity jurisdiction to exist, the amount in controversy must exceed the sum or value of $75,000, exclusive of

Answer 127

interest, costs, and collateral effects of a judgment.

Question 128

The amount in controversy is determined at the time the action is commenced in federal court, or, if the action has been removed to federal court, at

Answer 128

the time of the removal.

Question 129

When diversity jurisdiction exists when a complaint is filed, jurisdiction is not lost when

Answer 129

events after the action has been filed reduce the amount in controversy below the statutory minimum, provided the original claim was made in good faith.

Question 130

if the plaintiff eventually recovers an amount that is less than the statutory jurisdictional amount, then

Answer 130

that fact will not render the verdict subject to challenge on appeal for lack of jurisdiction.

Question 131

to accomplish removal from state circuit court to federal district court, the defendant must

Answer 131

1) file a notice of removal that is signed and contains a short and plain statement of the grounds of removal, with copies of the complaint and summons served on them
2) the notice and compliant are filed in the district court
3) promptly after filing notice with federal court, defendant must give written notice of the filing to all adverse parties
4) and file a copy of the notice with the state court clerk

Question 132

defendant has 30 days after complaint is served on them to file a

Answer 132

notice of removal

Question 133

the procedure in federal court for a defending party to make a claim against a non-party for all or part of the defending parties liability on an original claim is

Answer 133

impleader

Question 134

impleader is available to a defendant to pursue an

Answer 134

indemnity claim

Question 135

for impleader to be available, the federal district court must have

Answer 135

1) subject matter jurisdiction over the third party claim, and
2) personal jurisdiction over the third party who the claim is asserted against

Question 136

a limited liability company (LLC) is deemed to be a citizen of each state that

Answer 136

a member of the LLC is a citizen

Question 137

a federal district court may have subject matter jurisdiction over an indemnity claim if it has supplemental jurisdiction, which requires

Answer 137

1) the indemnity claim to be closely related to the original claim
2) and involves a common nucleus of operative facts

Question 138

for impleader the federal district court must also have

Answer 138

personal jurisdiction over the third party

Question 139

a federal district court will have personal jurisdiction over a third party even with only one contact if

Answer 139

the cause of action closely relates to the purposeful contact, giving the court specific jurisdiction

Question 140

to effect impleader, defendant must

Answer 140

1)serve a summons and third party complaint on the third party defendant
2) if filing more than 14 days after service of the original answer, original defendant must obtain the court’s permission

Question 141

if third party defendant does not have a registered agent in VA, the long arm statute permits service of process on

Answer 141

the Secretary of the Commonwealth

Question 142

a third party defendant may file a counterclaim against either

Answer 142

an original defendant, or an original plaintiff

Question 143

a pleading is required to state as a counterclaim (compulsory counterclaim)

Answer 143

any claim, at the time of service, the pleader has against an opposing party if the claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim.

Question 144

a permissive counterclaim does not necessarily fall within the supplemental jurisdiction of the federal court, as it does not

Answer 144

arise out of the same transaction or occurrence as the original claim.

Question 145

a permissive counterclaim must on its own

Answer 145

meet the requirements for federal subject matter jurisdiction

Question 146

a change in citizenship after the filing of a case will

Answer 146

not affect diversity jurisdiction that was in existence at the time of filing

Question 147

the basis for in personam jurisdiction are

Answer 147

1) voluntary presence
2) domicile
3)consent
4) the long arm statute of the state where the federal district court sits

Question 148

a counterclaim may be asserted by a defendant against a plaintiff without satisfying the jurisdiction amount for diversity when

Answer 148

the counterclaim is compulsory, but a permissive counterclaim does not qualify for supplemental jurisdiction

Question 149

The general rule is that any single plaintiff may aggregate all of thier claims against

Answer 149

a single defendant; no limit to this aggregation of claims principle

Question 150

Transfer occurs when

Answer 150

the case is moved from one trial court in a judicial system to another trial court in the same judicial system.

Question 151

Because transfer of venue overrides the plaintiff’s choice of forum in selecting where to file suit, the burden is on

Answer 151

the moving party to show both public and private factors that would grant the court deeming the transferee location as being the center of gravity for the case.

Question 152

For public factors the court looks to

Answer 152

what community should be burdened by jury service, and the desire to keep the controversy local.

Question 153

The private factors are based on convenience, such as

Answer 153

where the defendants and evidence are located

Question 154

An impleader claim is one where

Answer 154

a defending party is bringing in a new party, or the third party defendant

Question 155

An impleader claim is used to

Answer 155

shift the liability to the impleaded third party defendant for liability the original party will owe to the plaintiff

Question 156

In an impleader, if the defendant is going to be found liable to the plaintiff, the defendant will try to get the impleaded party to

Answer 156

pay all or part of his own liability

Question 157

impleader actions are claims of

Answer 157

indemnification or contribution

Question 158

While indemnity shifts liability completely to the third party defendant or impleaded party, contribution shifts the liability

Answer 158

pro-rate, so the TPD must cover pro-rata their portion of the claim.

Question 158

An impleader claim is permissive, meaning

Answer 158

that the defendant need not bring the action in the current case

Question 159

In order to implead a third party defendant, the defendant must

Answer 159

file a third party complaint naming the TPD and have that complaint formally served on them.

Question 160

There is a right to implead within

Answer 160

14 days of serving the answer

Question 161

after 14 days of serving the answer, if the defendant has not filed the motion to implead,

Answer 161

the defendant needs the courts permission

Question 162

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may be removed

Answer 162

by the defendant to the district court for the district and division in which the state court action is pending.

Question 163

A federal district court has limited subject matter jurisdiction and removal is not

Answer 163

a substitute for federal question or diversity jurisdiction.

Question 164

Diversity jurisdiction generally requires

Answer 164

complete diversity between opposing parties and an amount in controversy that exceeds $75,000.

Question 165

There is no diversity of citizenship if

Answer 165

any plaintiff is a citizen of the same state as any defendant in the case.

Question 166

Citizenship is determined at the time

Answer 166

1) the case is filed and
2) at the time the notice of removal is filed.

Question 167

There is no requirement that diversity existed at the time

Answer 167

the action arose.

Question 168

The amount in controversy must exceed $75,000 exclusive of

Answer 168

interest, costs, and collateral effects of a judgment.

Question 169

The amount in controversy is determined at the time

Answer 169

the action is removed to federal court, and the plaintiff’s good-faith assertion of damages is sufficient

Question 170

with regard to amount in controversy, a plaintiffs good faith assertion of damages is

Answer 170

sufficient

Question 171

The defendant must file a notice of removal with

Answer 171

the district court sitting in the district and division where the state action is pending

Question 172

The defendant must file a notice of removal within

Answer 172

30 days after receipt of the initial pleading or summons.

Question 173

removal is proper where:

Answer 173

1) federal district court can exercise jurisdiction (div/FQ)
2) notice of removal timely filed

Question 174

A party must make a motion for remand within

Answer 174

30 days after the filing of the notice of removal.

Question 175

The removal statute specifically requires the case to be removed to

Answer 175

the district court for the district and division in which the state court action is pending.

Question 176

where notice of removal filed in wrong district/division + motion to remand timely filed =

Answer 176

case subject to a motion to remand

Question 177

the proper division requirement has been characterized as

Answer 177

procedural, rather than jurisdictiona

Question 178

where the notice of removal is filed in the wrong division, instead of remanding, some courts have opted to

Answer 178

transfer the case to the proper federal court

Question 179

where diversity exists between the parties, and the only remaining grounds for remand are removal to the wrong federal court, the district court should

Answer 179

simply transfer the case to the proper district court

Question 180

In general, persons may be joined in one action as defendants if

Answer 180

(i) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence, and
(ii) a question of law or fact common to all defendants will arise in the action.

Question 181

in order to permit joinder, the additional defendant must also meet the requirements of

Answer 181

subject matter jurisdiction

Question 182

where a would be joined party is a citizen of the same state as the plaintiff

Answer 182

his joinder would destroy diversity and the federal court would no longer have subject matter jurisdiction over the case.

Question 183

Generally, if, after removal, the plaintiff seeks to join a defendant who would destroy the federal court’s diversity jurisdiction, the court has discretion to

Answer 183

1) deny the joinder and proceed with the action in federal court, or
2) to permit the joinder and remand the action to state court.

Question 184

a court is likely to deny a motion to join a defendant party that would destroy diversity when the motion is made in

Answer 184

bad faith in order to remand the case to state court.

Question 185

Under Rule 11, every pleading, written motion, and other paper filed with the court must be certified by the attorney that, to the best of his knowledge, information, and belief, formed after an inquiry reasonable under the circumstances

Answer 185

(i) the paper is not being presented for any improper purpose,
(ii) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law, and
(iii) the factual contentions have or reasonably will have evidentiary support.

Question 186

argument for a motion for sanctions under rule 11 where

Answer 186

claim filed is frivolous and without evidentiary support

Question 187

A motion for sanctions under Rule 11 must be

Answer 187

properly served on the opposing party. (phone call day before filing the motion is insufficient)

Question 188

court will deny a sanctions motion where

Answer 188

the would be sanctioned party was not properly served with the motion

Question 189

If the mental or physical condition of a party or a person in the legal custody or control of a party is in controversy, then the court may

Answer 189

order such person to submit to a physical or mental examination by a “suitably licensed or certified examiner.”

Question 190

A “suitably licensed or certified examiner” need not be

Answer 190

a physician, but often is

Question 191

others licensed to report on physical or mental conditions, including dentists or psychologists, can

Answer 191

qualify as suitable examiner

Question 192

a court may order a party to submit to a mental examination when

Answer 192

the party’s mental condition is in controversy.

Question 193

While there are several acceptable justifications for using a witness’ deposition testimony at trial rather than having the witness testify in person, the desire to save litigation expenses is

Answer 193

unlikely to be determined by the court as an exceptional circumstance that would make it desirable in the interest of justice to permit the deposition to be used.

Question 194

where a notice of trial deposition is filed days before discovery cut-off date, opposing party should file

Answer 194

an objection because it lacks adequate time to prepare for the deposition; if unable to resolve with moving party, file a motion for a protective order

Question 195

deposition cannot be used against a party who

Answer 195

having received less than 14 days’ notice of the deposition, promptly moved for a protective order requesting that it not be taken or be taken at a different time or place—and this motion was still pending when the deposition was taken.

Question 196

while the discovery process requires a degree of cooperation between the parties, there is no requirement that a party obtain the consent of

Answer 196

an opposing party before deposing a non-party witness.

Question 197

for an extension of the discovery cut-off date to depose a non party witness, the moving party must establish

Answer 197

goods cause for the extension

Question 198

possible avenues for using a deposition at trial for substantive purposes

Answer 198

i) The witness is more than 100 miles from the trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition (determined at time of trial) (court takes judicial notice of location);
ii) The party offering the deposition could not procure the witness’s attendance by subpoena; or
iii) On motion and notice, exceptional circumstances make it desirable in the interest of justice to permit the deposition to be used.

Question 199

The Federal Rules of Civil Procedure require a short and plain statement of the claim showing that

Answer 199

the pleader is entitled to relief to give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.

Question 200

Under the Rules’ notice pleading requirement, detailed factual allegations are not required, but a party must plead facts

Answer 200

sufficient to show that the claim has substantive plausibility.

Question 201

Under the Rules’ notice pleading requirement a claimant may not

Answer 201

merely recite the elements of a cause of action with broad, conclusory statements.

Question 202

in support of a Motion for Sanctions for Spoliation of Evidence, argue that

Answer 202

1) case was prejudiced by missing evidence
2) or party acted with intent to deprive the party of the evidence

Question 203

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, then the court:

Answer 203

(i) upon finding prejudice to another party, may order measures no greater than necessary to cure the prejudice, or
(ii) upon finding that the party acted with the intent to deprive another party of the information, may presume the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, dismiss the action, or enter a default judgment.

Question 204

file a Motion for Relief from the Judgment within

Answer 204

a reasonable time and in any case not later than one year following the entry of the judgment

Question 205

A party may file a Motion for Relief from a Judgment within a reasonable time, and no later than one year following the entry of the judgment for

Answer 205

(i) newly discovered evidence that could not have been earlier discovered with reasonable diligence, or
(ii) fraud (intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.

Question 206

The rule for Relief from a Judgment allows a court to exercise

Answer 206

its equitable jurisdiction to relieve a party from a judgment in any case in which enforcing the judgment would work injustice, and the party seeking relief or its counsel was not guilty of misconduct or gross negligence.

Question 207

A motion for relief from judgment should request that

Answer 207

1) judgment be vacated, and
2) a new trial be ordered

Question 208

In an action that does not involve a federal question, a federal district court’s subject matter jurisdiction must be based on

Answer 208

diversity jurisdiction.

Question 209

For diversity jurisdiction to exist, the amount in controversy must

Answer 209

exceed $75,000, excluding interests, cost, and the collateral effects of a judgment

Question 210

For diversity jurisdiction to exist

Answer 210

there must be complete diversity between opposing parties in a case.

Question 211

In general, a plaintiff’s good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient, unless

Answer 211

it appears to be a legal certainty that the plaintiff cannot recover the amount alleged.

Question 212

There is no diversity of citizenship if

Answer 212

any plaintiff in the case is a citizen of the same state as any defendant.

Question 213

Diversity is determined at

Answer 213

the time the case is filed.

Question 214

In determining the citizenship of an individual, the individual must be

Answer 214

a citizen of the United States and a domiciliary of the state.

Question 215

In general, an individual is a domiciliary of the state in which

Answer 215

she is present and intends to reside for an indefinite period.

Question 216

A corporation is deemed to be a citizen of every state in which

Answer 216

it has been incorporated and of the state where it has its principal place of business.

Question 217

When a federal district court lacks subject matter jurisdiction with respect to an action initially bought in the federal district court, the court

Answer 217

must dismiss the action.

Question 218

There is no time limit for making a motion to dismiss on the basis of lack of subject matter jurisdiction as long as

Answer 218

the action, including any appeal, is ongoing

Question 219

Any civil action commenced in state court may generally be removed by the defendant to federal district court in

Answer 219

the district and division in which the state court action is pending.

Question 220

In general, the right of removal is determined by the pleadings filed as of the time of the filing of

Answer 220

the petition of removal

Question 221

for removal in diversity cases, diversity must exist at the time of

Answer 221

filing the original action as well as at the time the notice of removal is filed, unless the plaintiff dismisses a party who would have destroyed diversity jurisdiction.

Question 222

If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if

Answer 222

no defendant is a citizen of the state in which the action was filed, even though subject matter jurisdiction exists.

Question 223

since the action is based on state law, the federal court, in order to have subject matter jurisdiction, must have

Answer 223

diversity jurisdiction over the parties

Question 224

A defendant who wants to remove a state court action to federal district court generally must

Answer 224

file a notice of removal with the district court within 30 days after receipt by or service on that defendant of the initial pleading or summons.

Question 225

If the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which

Answer 225

it may first be ascertained that the case is one which is or has become removable.

Question 226

a matter cannot be removed based on diversity of citizenship more than

Answer 226

one year after the action is commenced.

Question 227

Compulsory counterclaim:
Under Federal Rule 13(a), a pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if

Answer 227

1) the claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim and
2) does not require adding another party over whom the court cannot acquire jurisdiction.

Question 228

Under Federal Rule 13(b), a pleading may state as a counterclaim against an opposing party any claim that is

Answer 228

not compulsory (i.e., a permissive counterclaim).

Question 229

Under Federal Rule 18(a), a party asserting a counterclaim may join with it

Answer 229

as many independent or alternative claims of whatever nature as the party may have against the opposing party.

Question 230

Under Federal Rule 13(g), a pleading may state as a cross-claim any claim by one party against a co-party that

Answer 230

arises out of the same transaction or occurrence that is the subject matter of the original action

Question 231

under Rule 18(a), a party asserting a cross-claim may join with it

Answer 231

as many independent or alternative claims of whatever nature as the party may have against the opposing party

Question 232

In determining if the AIC is satisfied in a diveristy case, If injunctive relief is sought and it is difficult to assess a dollar amount, the court determines both

Answer 232

the value of the plaintiff’s harm if an injunction is not imposed and the defendant’s cost of complying with an injunction.
If the amount of either exceeds $75,000, then the amount-in-controversy requirement is satisfied.

Question 233

When an action involves one plaintiff against multiple defendants, the value of the plaintiff’s claims against each defendant generally may not be aggregated, unless

Answer 233

the defendants are jointly liable to the plaintiff, then aggregation to meet the amount-in-controversy requirement is permissible.

Question 234

If venue in a case is improper, then the district court must

Answer 234

dismiss the case or transfer the case to any district or division in which the case could have been brought.

Question 235

In general, venue in a federal civil action is proper only in a judicial district in which

Answer 235

1) any defendant resides, if all defendants reside in the same state in which the district is located; or
2) a judicial district in which a substantial part of the acts or omissions on which the claim is based occurred.

Question 236

For venue purposes, a natural person is deemed to reside in the judicial district where

Answer 236

that person is domiciled

Question 237

A corporation is deemed to reside in any judicial district in which

Answer 237

the corporation is subject to personal jurisdiction

Question 238

Even when venue is proper, in the interest of justice, a district court may transfer a civil action to any other district where it might have been brought if

Answer 238

it is more convenient for the parties and witnesses, or to another jurisdiction to which all parties have consented.

Question 239

In general, only a final judgment rendered by a federal district court is

Answer 239

appealable

Question 240

A final judgment is

Answer 240

a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

Question 241

There are a few exceptions to the final judgment rule, such as

Answer 241

interlocutory order granting, modifying, refusing, or dissolving an injunction.

Question 242

In order for a court to have personal jurisdiction over a defendant

Answer 242

the statutory requirements for such jurisdiction must be satisfied and the exercise of such jurisdiction must comport with the due process requirements.

Question 243

A federal district court must generally determine personal jurisdiction as if

Answer 243

it were a court of the state in which it is situated

Question 244

Virginia, as do all other states, has a long arm statute that permits a Virginia court to

Answer 244

exercise personal jurisdiction over an out of-state defendant who engages in the enumerated conduct.

Question 245

To satisfy the Due Process Clause, the defendant must have

Answer 245

“minimum contacts” with the state in which the court sits (i.e., the forum state), and the exercise of jurisdiction must be fair and reasonable.

Question 246

to warrant the assertion of personal jurisdiction, a defendant’s contacts with the forum state must be

Answer 246

purposeful and substantial, such that the defendant should reasonably anticipate being sued there.

Question 247

The scope of the contacts necessary for the assertion of personal jurisdiction depends on

Answer 247

the relationship that the cause of action has with the forum state.

Question 248

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

Answer 248

that contact is the defendant’s only contact with the forum state (specific jurisdiction)

Question 249

If the diversity action involves only one plaintiff and one defendant, then all of the plaintiff’s claims are added together (i.e., aggregated) to determine

Answer 249

the amount in controversy

Question 250

Third-party claims, also known as impleader, are made by a defending party against a non-party for

Answer 250

all or part of the defending party’s liability on an original claim.

Question 251

The impleaded claim must relate to

Answer 251

the original claim against the defending party.

Question 252

A third-party claim must fall within

Answer 252

the federal court’s subject matter jurisdiction.

Question 253

in a third party claim, subject matter jurisdiction is typically established through supplemental jurisdiction because

Answer 253

the impleaded claim must relate to the original claim and thus would satisfy supplemental jurisdiction’s key requirement.

Question 254

there must be personal jurisdiction over the third-party defendant for

Answer 254

impleader to apply

Question 255

Pj over a third party can be established through specific personal JX if

Answer 255

if the cause of action closely relates to the impleaded party’s contacts with the forum state.