Fed Civ Pro

Question 1

In a case based on diversity of citizenship, which statute of limitations do federal courts apply?

Answer 1

The statute of limitation that the forum state would apply under its choice of law principles

For diversity (state law) claims, federal courts apply the limitation period of the state whose law governs the merits of an action (that is, the statute of limitation the forum state applies under its choice of law principles). (For federal question claims, if the statute on which the claim is based has no specific limitation period, federal courts usually adopt the limitation period of the most analogous state law claim.) A. is incorrect because the forum state might not apply its own statute of limitation, depending on its choice of law rules. B. describes a borrowing statute; such a statute may be applied depending on the forum state’s law and its choice of law rules. C. is incorrect because the forum state might not apply the statute of limitations of the state in which the cause of action arose; it again depends on the forum state’s choice of law rules. [Long, Long & Kellerman, P.C. v. Wheeler, 264 Va. 531 (2002)]

Question 2

Generally, as part of the discovery process, a party may depose ________ experts of opposing parties

Answer 2

Testifying but not consulting

Generally, as part of the discovery process, a party may depose testifying but not consulting experts of opposing parties. Experts who merely consult with a party but are not expected to testify may be discovered only upon a showing of exceptional circum-stances under which it is impracticable to obtain facts by other means

Question 3

For venue purposes, a business entity D is deemed to reside in:

Answer 3

Any judicial district in which the D is subject to the court’s PJ with respect to the action in question

A business entity defendant is deemed to reside in any judicial district in which the defendant is subject to the court’s personal jurisdiction with respect to the civil action in question. The judicial district in which the business entity is incorporated is too narrow an answer. Not all business entities are incorporated. “Any judicial district in which the defendant is subject to the court’s personal jurisdiction” is too broad an answer; the entity must be subject to the court’s personal jurisdiction with respect to the particular civil action in question. The domicile of the business entity’s owner is irrelevant for venue purposes. [28 U.S.C. §1391(c)]

Question 4

At what point in the litigation is the defense of lack of SMJ waived if not raised?

Answer 4

A lack of SMJ is never waived

The lack of subject matter jurisdiction is never waived. A defendant may raise the defense of lack of subject matter jurisdiction for the first time at any time, including on appeal. [Fed. R. Civ. P. 12(b)]

Question 5

At what point is a party’s citizenship determined for purposes of diversity of citizenship jurisdiction?

Answer 5

When the lawsuit is filed

Whether diversity of citizenship exists is determined when the lawsuit is filed. Diver-sity need not exist when the cause of action accrues, and it is not defeated if a party changes his state citizenship after the lawsuit is filed. State citizenship for diversity purposes is not controlled by service of process. [Grupo Dataflux v. Atlas Global Group, 541 U.S. 567 (2004)]