MBE Workshop Questions

Question 1

A supplier and a contractor had a contract dispute. The contractor drove to the suppliers home to try to solve it but it didn’t work. As he backed out of the driveway he hit the supplier’s car. The supplier sued for contract claim for 71k and breach of contract for 5k. Does the federal court have subject matter over these claims?

Answer 1

Yes, because the two claims can be aggregated. Plaintiff can aggregate all claims to meet the jurisdictional amount of 75k. It DOES NOT MATTER IF the claims are legally or factually related to each other.

Question 2

Does the federal rules of civil procedure trump state law in federal court?

Answer 2

yes, as long as the rule comports with the Rules Enabling Act (rule governs practice and procedure and does not modify or abridge substantive rights).

Question 3

Does Federal Rule of Civil Procedure require the defendant to raise the defense that another action is pending between the parties in the first responding pleading?

Answer 3

NO, Federal Rule of Civil Procedure does not require this under rule 12.

Question 4

A researcher and an analyst had employment contracts with a corporation. The corporation fired them. the researcher and the analyst filed against the corporation in federal district court. the researcher seeks 100k in damages and analyst seeks 50k. They are both citizens of state A while the corp. is a citizen of state B. Does the federal court have subject matter J over both claims?

Answer 4

The court has SMJ over the researchers because he meets diversity jurisdiction different states and amount exceeding 75k. However, the analyst does not meet the amount of controversy, so he needs another basis. Multiple plaintiffs cannot aggregate but The analyst will envoke supplemental jurisdiction. 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.

Question 5

What is supplemental Jurisdiction?

Answer 5

When the court has subject matter jurisdiction in one claim, it has the discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of operative fact and are such that the plaintiff would be ordinarily be expected to try them together.

Question 6

Can internet activities be sufficient for purposeful contacts for PJ?

Answer 6

Yes, it can when they are purposeful and the claim arises from that contact (not just making the website accessible is insufficient without more).

Question 7

When is personal jurisdiction constitutional?

Answer 7

When the defendant has made purposeful contacts with the forum state such that it would be fair and reasonable to exercise personal jurisdiction over him.

Question 8

Can PJ be specific?

Answer 8

Yes, this means the court has pj over the defendant only for the plaintiffs cause of action and the contact from which the case springs.

Question 9

Can PJ be general?

Answer 9

Yes, if the defendant is “at home” in the jurisdiction.

Question 10

Hunter buys a hunting stand from a corporation. Hunter takes hunting stand to another state and the stand collapses causing the hunter injuries. the corps only contact is that their website is accessible there. Does that state have pj over the corp?

Answer 10

No, It was the hunter’s unilateral act that brought the stand to that state. such an act does not give the forum court personal jurisdiction over a company that places a movable object into the stream of commerce.

Question 11

After filing her complaint in federal district court, a p mailed to a defendant by ordinary first class mail the following: duly executed copies of a waiver-of-service form, and an addressed, pre-paid return envelope. The defendant signed the waiver-of-service form and returned the copy to the plaintiff. 50 days after the plaintiff mailed the forms to the defendant and 25 days after the defendant returned the signed form to the plaintiff, the plaintiff filed a motion for entry of default and a default judgment. The following day the defendant files and served his answer. Is his answer timely?

Answer 11

Yes, the key here is that the defendant waived his service of process. When the defendant waives his service of process, the defendant is allowed 60 days from the date on which the plaintiff mailed the summons and complaint in which to serve a response.

Question 12

How long does a defendant have to serve an answer or another response?

Answer 12

21 days after being formally served with process.

Question 13

A bar prep company discovered that its copywrited content was being used in an online simulated exam that its competitor was administering in a few days. The company filed a petition for a 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 grant the order?

Answer 13

No, because the bar prep company has not provided certified efforts to give notice to the company or why notice should not be required.

Question 14

When may a temporary restraining order be granted?

Answer 14

when it is necessary to prevent 1) irreparable injury to a party, and the injury will result before a preliminary injunction hearing can be held.

Question 15

What is the general rule for notice for a temporary restraining order?

Answer 15

notice of the hearing for the issuance of the order must be given before it is issued.

Question 16

When can a court grant a temporary restraining order without a notice?

Answer 16

when the moving party 1) 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; 2) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and 3) provides some security to pay any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained.

Question 17

Two citizens of State A were injured in State B when the taxi in which they were riding was in an accident. The two State A citizens intend to file tort claims against the taxi driver, a citizen of State B, in federal district court seeking over 100,000 each. May or must they assert their claims in federal district court in a single action?

Answer 17

Yes, they may assert their claims in a single action. Under Federal Rule 20, parties may permissively join as plaintiffs when: 1) some claim is made by each plaintiff and against each defendant relating to or arising out of the same transaction or occurrence, and 2) there is a question of fact or law common to the parties.

Question 18

What is protected under the work product doctrine?

Answer 18

Draft reports and draft disclosures of trial experts. confidential communications between such experts and counsel for the party, except for communications relating to the expert’s compensation or to facts or data the attorney provided to the expert.

Question 19

A former shareholder of a corporation filed an action against the corporation board of directors. for shareholder served a request for production of documents that included a request for any documents relating to the value of the corporation. The corporation produced a number of documents but withheld certain documents. Without contacting or conferring with the corporation or its lawyer, the former shareholder filed a motion to compel production of withheld documents. Can the shareholder seek recover costs or attorneys fees related to the motion or to have sanctions imposed on the corporation?

Answer 19

The shareholder is not likely to recover costs or attorneys fees or have sanctions imposed. the key here is that a motion to compel must certify that the moving party has made a good faith effort to obtain discovery without court intervention. the certification is a prerequisite to an award of reasonable expenses. He just went straight to motion to compel.

Question 20

defendant’s attorney properly gave notice of and commenced a deposition of a eyewitness to the accident. attorneys for both parties were present at the deposition. During the deposition, the defendant’s attorney asked the witness a leading question and the plaintiffs attorney did not object. at the time of trial, the eyewitness was out of the country. Therefore, defendant’s attorney sought to read a portion of the witness’s deposition testimony into evidence at trial, including that leading question and the response to it. The plaintiff’s attorney objected at trial to the reading of the leading question and the witness’s response. Is this admissible?

Answer 20

Both are admissible. the plaintiffs attorney did not make a seasonal objection at the deposition to obviate the error. Thus, he waived the objection at trial.

Question 21

When may a deposition be used against any party who was present at the deposition or had notice of it?

Answer 21

1) to impeach the deponent as a witness
2) death, lives 100 mi away, sick
3) deponent is an adverse party

Question 22

May a plaintiff voluntarily dismiss her action once the defendant answered?

Answer 22

No, the plaintiff cannot. however the court can grant dismissal on such terms and conditions as the court deems proper. if there is a counterclaim pending in the action, there can be no dismissal over the defendant’s objection that the counterclaim is still pending.

Question 23

What are the exceptions to the general rule that only a final order may be appealed?

Answer 23

A party may appeal, as of right, any order granting, continuing, modifying, refusing, dissolving, or refusing to dissolve or modify an INJUNCTION! (ex. can appeal an preliminary injunction).

Question 24

P filed a single cause of action against a defendant on a claim based on products liability in state court. The plaintiff contends that a space heater that he was using during the winter short-circuited, causing a fire that burned down his house. In July, the plaintiff’s case against the defendant went to trial, and the jury determined that the fire was caused by faulty wiring in the plaintiff’s home. The following September, the plaintiff filed a breach of warranty action against the defendant in federal court, properly invoking diversity jurisdiction. The defendant after properly being served with process, files an answer with an affirmative defense of claim preclusion as his first pleading or motion. the defendant, at the appropriate time, files a motion for summary judgment based on claim preclusion. How should the court rule?

Answer 24

Grant the motion because claim preclusion applies to bar the claim.

Question 25

What must be shown for claim preclusion to apply?

Answer 25

1) an early judgment is a valid, final judgment on the merits
2) the cases are brought by the same claimant against the same defendant
3) the same cause of action or claim is involved in the later law suit.

Question 26

What is the test for cause of action in claim preclusion case?

Answer 26

a later claim is deemed to be the same claim if it arises from the same transaction or occurrence as the earlier claim (ex. products liability and warranty claim relates back to same space heater malfunctioning).

Question 27

What if the plaintiff loses the earlier case?

Answer 27

claim preclusion bars further litigation

Question 28

What if the plaintiff wins the earlier case?

Answer 28

the earlier theory “merges” with the new theory in the new case to prevent further litigation.

Question 29

When may a nonparty intervene?

Answer 29

First, a nonparty may intervene when it has an unconditional right to do so by a federal statute. Second, a nonparty may intervene if (i) it has an interest in the property or transaction the is the subject matter of the action; (ii) the disposition or resolution of the action may as a practical matter impair the nonparty’s ability to protect its interest; and (iii) the nonparty’s interest is not adequately protected by an existing party in the action.

Question 30

Unlike a compulsory counter claim, does a permissive counterclaim (unrelated to same occurrence/transaction) have to meet the jurisdictional amount for diversity?

Answer 30

Yes.

Question 31

A husband and wife were traveling in a car with the wife driving when they were in an accident with a truck. The accident occurred in a jurisdiction that followed the traditional rule as to joint and several liability among tortfeasors. The husband sued the truck driver in federal district court. The truck driver, contending that the wife was an indispensable party, filed a motion to dismiss the action because the husband did not join his wife as a party to the action.

How should the court rule on the truck driver’s motion?

Answer 31

Deny the motion because the wife is not needed for adjudication. When deciding whether an absentee party is indispensable, the court considers a number of factors. However, the Supreme Court has held that a joint tortfeasor subject to joint and several liability is not a person needed for just adjudication.