MBE PQ 5 Flashcards
How do you determine whether the diversity-of-citizenship requirement has been met with respect to a limited partnership?
In testing whether the diversity-of-citizenship requirement has been met with respect to a limited partnership, the citizenship of the limited partners as well as that of the general partners must be considered.
Note: Lookout for a limited partner being a citizen of the same State as P and eliminating SMJ.
What is the probate exception to diversity jurisdiction?
While federal courts generally do not exercise diversity jurisdiction over probate matters, this restriction is narrowly construed and primarily applies to the probate of a will or the administration of a decedent’s estate.
For statutory interpleader action, with respect to diversity jurisdiction, if the amount in controversy does not exceed $75,000 does the court lack SMJ?
For a statutory interpleader action, the amount in controversy need only be $500 or more, rather than exceeding $75,000 as otherwise required for a diversity action.
P is a State A citizen who files a state court action in State A against D1 (EE) and D2 (ER). Both Ds remove from state court to federal district court. If neither P nor D1 or D2 reside in the district where the federal district court is located and the events which give rise to the action occurred outside the federal district (in State A) may removal of the action be challenged on the basis of improper venue?
No. Under Section 1441(a) of the removal statute, an action may be removed to the federal court in the district where the state action is pending. That removal statute determines venue, regardless of whether venue would have been proper under the venue statute (Section 1391) if plaintiff had originally brought the action in that federal district court.
When must a plaintiff pursuing an action against a federal officer or employer also serve process on the United States?
Even though a plaintiff is pursuing an action against a U.S. officer or employer in his individual capacity, the plaintiff is required to also serve process on the United States if the basis for the action is conduct that occurred in connection with duties performed on behalf of the United States.
In ruling on a motion to dismiss upon which relief can be granted what evidence may the court consider?
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. When a defendant files a motion to dismiss for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion.
A taxpayer filed an action in federal court against the IRS for a refund. The IRS served upon the taxpayer a request that the taxpayer admit that she was not entitled to claim a business deduction for a specific expense. The taxpayer, determining that the requested admission required the application of law to facts, did not reply to the request.
What is the effect of the taxpayer’s action?
For the purpose of this lawsuit, TP is deemed to have conclusively admitted the requested admission b/c she didn’t respond to the request.
A matter is deemed to be admitted unless the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney. A matter admitted is conclusively established, but only in the pending action; it cannot be used against the party in any other proceeding.
Need to study discovery and pretrial adj.
Need to study discovery and pretrial adj.
