M/C Civ Pro Questions

Question 1

Does a Court have Supplemental Jurisdiction over a claim if there is a failure to satisfy the Diversity-of-Citizenship Requirement?

Answer 1

NO

The failure to satisfy the diversity-of-citizenship requirement prevents the court from exercising supplemental jurisdiction over this claim, even though it arises from the same nucleus of operative facts as the forum-skier’s claim.

Question 2

When is Joinder of claims permissible?

Answer 2

Joinder of claims is permissible when each claim arises from the same occurrence and there are common questions of fact and law with regard to each.

Question 3

Can there be a lack of PJ if the Defendant is not from the forum state but the COA arose in the Forum State?

Answer 3

NO.

Even though the defendant is not a citizen of the forum state, the fact that the accident occurred while the defendant was present in the forum state would be sufficient minimum contacts to give the court specific jurisdiction over the defendant.

Question 4

Is venue proper if the Defendant does not reside in the judicial district in which the action was brought?

Answer 4

YES.

Although the defendant does not reside in the judicial district in which the action was brought, a substantial part of the events or omissions on which the claim is based occurred in that district. Thus, venue is proper.

Question 5

When can a civil action filed in state court be removed to Federal court?

Answer 5

A civil action filed in state court may be removed to the district court where the state court action commenced if that federal court has original jurisdiction over the matter.

If removal is sought solely based on diversity jurisdiction, however, the claim cannot be removed if any defendant is a citizen of the state where the original action was filed.

If one of the defendants is a citizen of the state where the action was filed, then removal would be improper.

Question 6

Can a court have proper PJ over two defendants domiciled in different states?

Answer 6

YES.

A court can have jurisdiction over a defendant who is domiciled within the state, as well as a defendant who is voluntarily present in the forum state and is served with process while there.

Question 7

Where is venue proper when a case is removed from state court?

Answer 7

in cases that are removed from state court, venue is automatically proper in the federal district court in the district where the state action was pending.

It is immaterial that venue would not have been proper if the action had been brought initially in that district.

Question 8

Is Specific Jurisdiction enough if the ONLY time a party availed themselves to the Jurisdiction, was when the COA occurred?

Answer 8

When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jurisdiction may be warranted even if that contact is the defendant’s only contact with the forum state. This type of jurisdiction is often referred to as “specific jurisdiction.” In this case, the defendant’s only contact with the state was his drive through the state, at which time the accident occurred. Accordingly, the court could likely exercise jurisdiction over the defendant under the doctrine of specific jurisdiction.

Question 9

When a cause of action does NOT arise or relate to the Defendant’s contacts with the forum state, may a court exercise jurisdiction over that Defendant?

Answer 9

YES - If there is General Jurisdiction

When a cause of action does not arise out of or relate to the defendant’s contacts with the forum, jurisdiction will be warranted only when the defendant is “at home” in the forum state. This type of jurisdiction is known as “general jurisdiction.”

Question 10

What is In Rem Jurisdiction?

Answer 10

In rem jurisdiction is the authority of a court to determine issues concerning rights in property, either real or personal.

In general, for in rem jurisdiction to exist, the property at issue must be present within the forum state.

If there is a case where the defendant does not own property in the forum state, then there would be no basis for in rem or quasi-in rem jurisdiction.

Question 11

When must the defense of lack of personal jurisdiction must be asserted?

Answer 11

Under Rule 12(b), the defense of lack of personal jurisdiction must be asserted in a responsive pleading or by motion before a responsive pleading is submitted.

Question 12

What happens if the the defense of lack of personal jurisdiction is not asserted in the answer or first responsive pleading?

Answer 12

The failure to timely object to a court’s assertion of personal jurisdiction waives the objection.

If the defendant files an answer or alternate motion and the defendant does not amend the answer within 21 days to include the personal jurisdiction defense the defendant will waive the objection.

The court cannot now dismiss the action for lack of personal jurisdiction over the defendant.

Question 13

Where is venue proper?

Answer 13

Venue is proper in the district in which “a substantial part of the events” occurred that form the basis of the plaintiff’s claim.

Venue is also proper in a district in which “any defendant resides, if all defendants reside in the same state in which the district is located.”

Question 14

If a party does not submit proof of service to the court does that affect the validity of the service?

Answer 14

NO.

The federal rules mandate that, unless formal service is waived, a process server must submit proof of service to the court.

However, the failure to make proof of service does not affect the validity of the service.

Answer choice C is incorrect. Answer choice D is incorrect because

Question 15

How long does a defendant have to file a pre-answer motion after service of process has been made?

Answer 15

A defendant generally has 21 days after the service of process to file a pre-answer motion to dismiss for insufficient service of process.

Question 16

Do the Federal Rules of Civil Procedure specify a time frame for making proof of service?

Answer 16

NO.

The federal rules do not specify a time frame for making proof of service.

Question 17

How old must one be to be a process server?

Answer 17

A nonparty who is at least 18 years old may be a process server.

Question 18

What is reviewed in a motion to dismiss for failure to state a claim

Answer 18

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court must take all well-pleaded facts in the complaint as true and resolve all doubts and inferences in the complainant’s favor.

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice. (Note that the court could consider outside material like an affidavit for a motion for summary judgment.)

Question 19

What must be included in the Answer?

Answer 19

An answer must not only admit or deny the allegations of the plaintiff’s complaint but also state applicable affirmative defenses, including the Statute of Frauds.

Those affirmative defenses not stated in the defendant’s answer are deemed waived.

Question 20

Can a court exercise supplemental jurisdiction over joinder of parties if that court lacks SMJ over one party?

Answer 20

YES.

Although the court lacks diversity jurisdiction over the younger passenger’s claim because the claim does not satisfy the amount-in-controversy requirement of damages in excess of $75,000, the court can exercise supplemental jurisdiction over this claim.

The claim arises out of the same accident as the older passenger’s claim and involves a common nucleus of operative facts.

In addition, because the younger passenger and the pilot are citizens of different states, the diversity-of-citizenship requirement is met.

In such a case, the court may exercise supplemental jurisdiction over the younger passenger’s claim even though it does not meet the amount-in-controversy requirement.

Question 21

May the claims of separate plaintiffs (joinders) be aggregated together to satisfy the AIC Requirement?

Answer 21

NO.

With respect to claims advanced by different plaintiffs UNLESS they are enforcing a single title or right in which they have a common or undivided interest.

Since that is not the case here, the younger passenger may not aggregate the amount of the older passenger’s claim with his own.

Question 22

Can a Plaintiff aggregate multiple claims together to meet the AIC?

Answer 22

YES.

Claims brought by a SINGLE plaintiff, the amount sought with respect to each claim may be aggregated together in determining whether the amount-in-controversy requirement has been satisfied.

Question 23

Is a settlement for a class action proper if the court is not involved?

Answer 23

NO.

The claims, issues, or defenses of a certified class may be voluntarily settled, compromised, or dismissed only with the approval of the court.

Question 24

The Bulge Provision?

Answer 24

Under the “bulge provision,” service is proper if the Party is served within 100 miles of the district court even if state law would otherwise not permit such service.

Under Rule 4(k)(1)(B), the so-called “bulge provision,” a federal court has personal jurisdiction over a party who is served within a U.S. judicial district and not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service.

This rule applies to third-party defendants joined by impleader, even if the service is outside of the state and beyond its long-arm statute jurisdiction.

Question 25

Where can a NON US Resident Defendant be sued in a Diversity Juris. Case?

Answer 25

A defendant who is not a resident of the United States may be sued in any judicial district. A defendant who is a resident of a foreign country, may be sued in the federal district court for the district in which the Plaintiff resides.

Question 26

Must an action be brought in a state where the COA arose in if it involves a FOREIGN Defendant?

Answer 26

NO.

Even if the cause of action did arise in another state, a nonforum state, venue is proper where the defendant resides and, for a defendant who is not a resident of the United States, the defendant is deemed to be a resident of any judicial district.

Question 27

What happens if there is not an unanimous verdict?

Answer 27

If there is not an unanimous verdict, the court may order a new trial.

Under the federal rules, the verdict of a civil jury must be unanimous unless the parties otherwise agree.

Question 28

Must there be an order for a new trial if polling reveals that a verdict is not unanimous?

Answer 28

NO.

When polling reveals that the verdict is not unanimous, the court is not required to order a new trial, but may instead order the jurors to deliberate further.

Question 29

When must a movant file a renewed motion for JMOL?

Answer 29

The movant may file a renewed motion for judgment as a matter of law no later than 28 days after the entry of judgment.

Question 30

When can a Cross-claim be asserted by a defendant against another defendant?

Answer 30

A cross-claim may be asserted by a defendant against another defendant or by a plaintiff against another plaintiff if the cross-claim arises out of the same transaction or occurrence as the initial claim, without regard to the amount in controversy or the citizenship of the parties to the cross-claim as long as the court has subject matter jurisdiction.

A cross-claim falls under the supplemental jurisdiction of the court

Question 31

When is there Diversity Jurisdiction?

Answer 31

Federal courts have diversity jurisdiction when the plaintiff and the defendant are citizens of different states, and the amount in controversy exceeds $75,000.

A party may voluntarily change state citizenship after the accrual of a cause of action but before the commencement of a lawsuit and thereby establish or defeat diversity jurisdiction.

A party’s motive for changing citizenship is irrelevant, but there must be a genuine change of state citizenship.

Question 32

May a Defendant request more than 12 jurors?

Answer 32

NO.

Under the federal rules, a jury must initially have at least six and no more than 12 members. Consequently, the court cannot grant the defendant’s request for more than 12 jurors.

Question 33

What law is applied to a Fed. Question Claim filed in Federal Court?

Answer 33

If an action is based on a federal question claim, then federal substantive and procedural law will control, as well as federal common law.

Accordingly, the district court must apply federal substantive and procedural law to the case.

Question 34

When the federal district court analyzes whether it has personal jurisdiction over the matter where do they look?

Answer 34

Under Rule 4(k)(1)(A), the service of a summons in a federal action establishes personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” The federal court must generally determine personal jurisdiction as if it were a court of the state in which it is situated. It would therefore look to that state’s jurisdictional statute.

Question 35

If there is a difference between FRE and a States Rules of evidence in regard to privilege, what law must the court recognize in a Fed. Question Claim?

Answer 35

In federal question cases, privileges are determined under federal common law, pursuant to Rule 501 of the Federal Rules of Evidence.

Privileged information is not discoverable.

In this case, the woman brought an action under federal law—Title VII of the Civil Rights Act of 1964. Thus, the court has federal question jurisdiction over the matter.

Accordingly, the court must recognize the psychiatrist-patient privilege under federal common law.

Regardless of whether the evidentiary privilege is considered substantive or procedural, the federal court’s jurisdiction in this case is based on federal question jurisdiction, and thus it must apply the federal common law.

Question 36

What is needed for a Plaintiff to seek a Preliminary Injunction?

Answer 36

A plaintiff seeking a preliminary injunction must establish that:

1. she is likely to succeed on the merits;
2. she is likely to suffer irreparable harm in the absence of relief;
3. the balance of equities is in her favor; and
4. the injunction is in the best interest of the public.

All four of these factors must be satisfied. Also, there is no irreparable injury, if monetary damages are potentially available to compensate a party for a breach of contract.

If the affected party can recover damages, the harm is not irreparable.

Question 37

Can an Interrogatory be used on a Non-Party Witness?

Answer 37

NO.

Interrogatories may not be used on nonparty witnesses.

Question 38

Is there a limit on how many interrogatories a party may serve on another party?

Answer 38

YES, 25.

A party may serve no more than 25 written interrogatories on any other party.

Question 39

Does Supplemental Jurisdiction apply to Federal Question Jurisdiction Claims as the original claim and a state claim as the joined claim?

Answer 39

If the original claim is based on federal-question jurisdiction, then a nonfederal claim may be joined ONLY if diversity jurisdiction exists or if the two claims are part of the same case or controversy as the federal claim such that supplemental jurisdiction applies.

Supplemental or diversity jurisdiction must exist for the court to be able to hear the employee’s additional claim.

Question 40

When must a demand for a jury trial be filed in order to be timely?

Answer 40

A demand for a jury trial must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury.

When the complaint seeks damages, it is now an action at law for which a jury trial may be had.

Question 41

May a party set aside a judgement for eminent domain if they were not properly given notice, when notice would have been reasonable?

Answer 41

YES.

Although in rem proceedings are commenced against property, they must still satisfy due process requirements for personal jurisdiction because they affect the rights of individuals in the property.

Due process is met if the notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

It is not sufficient to simply post the notice on the property or publish the notice in a newspaper as to persons who are known to have an interest in the property and whose whereabouts are reasonably ascertainable.

Any absent defendant who does not personally receive notice may set aside the judgment at any time within one year of the final judgment.

Question 42

Can a party take a deposition prior to making its initial disclosure?

Answer 42

NO. Not without leave of the court.

Rule 30 requires leave of the court to take a deposition before the deposing party has complied with its initial disclosure requirements under Rule 26(a).

Question 43

I an immediate appeal available on an order for a new trial?

Answer 43

NO.

An order for a new trial is not appealable because it is not a final judgment.

A party who wants to raise on appeal the grant of a new trial must wait until the new trial has occurred and resulted in a final judgment.

The party may then appeal from that judgment and raise as an issue the order for the new trial.

Question 44

What substantive law is applied when a case is heard in a Fed. District Court due to Diversity Jurisdiction?

Answer 44

A federal district court with diversity jurisdiction generally must apply the SUBSTANTIVE LAW OF THE THE STATE IN WHICH IT IS LOCATED unless a federal statute applies.

In determining a state’s substantive law, the district court will be bound by the rulings of the forum state’s highest court.

The federal court must follow the ruling of the forum state’s highest court on this substantive matter.

If the state’s highest court has not yet ruled on an issue, the federal court tries to determine how the state’s highest court would rule. However, once the state’s highest court does rule, the federal court is bound by that ruling. This is true even if the state court’s ruling comes during a federal case’s appeal.

Question 45

Does filing a motion to dismiss instead of an Answer bar a defendant from subsequently filing what would have been a compulsory counterclaim?

Answer 45

NO.

In the prior action brought by the purchaser, the lender’s claim for payment of the note would have been a counterclaim to the purchaser’s claim. Because it arose out of the same transaction that was the subject matter of this claim, it would have been a compulsory counterclaim that the lender would have been required to assert in its pleadings in that action. However, the lender, instead of filing a pleading (i.e., an answer) in that action, filed a motion to dismiss, which was granted. As a consequence, the lender’s failure to raise its demand for payment of the note in the prior action does not bar the lender from bringing a suit to collect on the note.

In the prior action brought by the purchaser, the lender’s claim for payment of the note would have been a compulsory counterclaim that the lender would have been required to assert in its pleadings. But because the lender never filed a pleading, he is not barred from raising the claim in this action.

Question 46

How many members are required under the Class Action Fairness Act (CAFA)?

Answer 46

Under the Class Action Fairness Act (CAFA), the class must have at least 100 members.

Question 47

Requirements for the Class Action Fairness Act (CAFA)?

Answer 47

1. AIC must exceed $5 million

2. The number of class members be at least 100.

Question 48

When should a defendant respond to an amended pleading?

Answer 48

Unless the court orders otherwise, a party must respond to an amended pleading

1. within the later of 14 days after service of the amended pleading

OR

2. the time remaining for response to the original pleading.

Question 49

Is an objection on the record enough to preserve an error on appeal?

Answer 49

YES.

In order to be able to raise an error in a jury instruction on appeal, a party must timely object to the instruction on the record and state the grounds for the objection. A party’s objection is timely if it is made promptly after learning that an instruction has been or will be given or a request has been refused.

Question 50

Can a party obtain relevant documents to the litigation from a person who is not a party to to the case?

Answer 50

YES.

A subpoena duces tecum is used to obtain documents relevant to litigation from a nonparty.

A party may use a subpoena to obtain documents relevant to litigation that are in the possession of a person who is not a party to the litigation.

Question 51

What does the Initial Disclosure Rule apply to?

Answer 51

The initial disclosure rule applies to documents in the possession, custody, or control of a party that may be used to support the party’s claim or defense. In this case, the letter is not in the defendant’s possession, custody, or control.

Question 52

If there is a clerical mistake in a judgement does a motion need to be filed?

Answer 52

NO.

Rule 60(a) allows a court to correct a clerical or other mistake resulting from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may make such a correction on motion by a party or on its own initiative, with or without notice.

Question 53

Can the court make a correction to a clerical error on a judgement once there has been an appeal from a judgement filed?

Answer 53

NO.

Once an appeal from a judgment or order has been docketed in the appellate court, such a correction can be made only with leave of the appellate court.

Question 54

When should a motion for relief from judgement be filed?

Answer 54

A motion for relief from judgment under Rule 60(b) must be filed within a reasonable time and no later than one year following the entry of the judgment

Rule 60(b) sets a specific time limit for a motion for relief from judgment based on newly discovered evidence, regardless of the unfairness that might result.

Question 55

Res Judicata - The Doctrine of Claim Preclusion

Answer 55

The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action.

If the same parties are involved in both lawsuits, and the cause of action in each lawsuit is different then res judicata does NOT apply

Question 56

If there is a conflict on whether a party is entitled to a jury trial, how should the court in a diversity action in a federal district court rule?

Answer 56

In diversity actions, a federal district court is generally bound by the conflict-of-law rules of the state in which the district court is located.

Questions about the right to a jury trial are considered procedural and are determined by the law of the forum state.

The choice-of-law rules of the forum state, control here. Under those rules, procedural matters, such as the right to a jury trial, are determined by the law of the forum state.

The right to a jury in a civil matter is considered procedural, rather than substantive.

Question 57

If a defendant does NOT deny damages in an Answer, has that Defendant now admitted to the amount of damages?

Answer 57

NO.

Although an allegation in the plaintiff’s complaint is generally deemed admitted if that allegation is not denied in the answer, the same is not true if the allegation relates to the amount of damages.

Question 58

When must a Fed. Court with Diversity Jurisdiction over an action be required to apply State Substantive law?

Answer 58

a federal court with diversity jurisdiction over an action is required to apply state substantive law, such as a statute of limitations, but is not required to apply a state procedural rule. However, when that state procedural rule determines the applicability of the state statute of limitations, the federal court must apply the state procedural rule. Consequently, although the federal rule specifies that an action commences upon the filing of a complaint with the court, the federal court in this action must apply the state court rule that the action does not commence until the complaint has been served. Because service here was not made within the two-year period of the statute of limitations, the federal court should grant the defendant’s motion to dismiss.

A federal court with diversity jurisdiction over a state law claim must apply the state rule as to when an action commences for purposes of determining whether the state statute of limitations on the claim has expired.

Question 59

Can a party ask the court to order a physical examination to be conducted if there is no good cause other than verification of a party’s injuries?

Answer 59

YES.

Although a physical examination may be ordered only for “good cause,” the plaintiff here has placed her physical condition into controversy by claiming personal injury damages, which is sufficient “good cause” for the court to order a physical examination.