Pre trial Procedures Flashcards
After service of process within how many days do you answer a complaint?
Answer the complaint within 21 days
A pedestrian domiciled in State A was crossing a street in State B when he was hit by a car driven by a citizen of a foreign country. Both the pedestrian and the driver suffered injuries.
The pedestrian filed a negligence action against the driver in a federal district court in State B, seeking $100,000 in damages. The driver believes that the pedestrian was crossing the street illegally and is therefore responsible for the accident. The driver seeks an attorney’s advice on how best to respond to the action. Assume that State B is a contributory negligence state.
How should the attorney advise the driver to respond? Discuss Personal Jurisdiction and Alienage Jurisdiction
File an answer raising the affirmative defense of contributory negligence and asserting a counterclaim for negligence, seeking damages for the driver’s injuries.
Foreign citizens are subject to alienage jurisdiction.
When it comes to Personal jurisdiction, a states long arm statue may permit them to bring a defendant from a foreign country, because the cause of action arose in the same state.
A mail clerk domiciled in State A slipped and fell on ice that had formed near the loading dock of the building in State B where the clerk’s State B employer leased space for its headquarters. The building was owned and operated by a State C corporation. As a result of the fall, the clerk was injured and the employer’s expensive computer he was carrying was badly damaged.
The clerk sued the building owner for negligence in a federal district court in State B, seeking $100,000 in personal-injury damages. The employer has filed a timely motion to intervene, asserting an $80,000 negligence claim against the building owner for the damage to its computer.
Is the court likely to grant the employer’s motion to intervene?
A third party may be granted intervention into a case by way of right or permissively. Intervention by a third party may be granted permissively when the applicant’s claim has a common question of law or fact as the main action, and the claim does not destroy complete diversity. In this case, the employer is from State B and his claim exceeds $75,000. The employer’s claim is also for negligence, the same as the mail clerk’s, and arises from the same incident. Therefore, the claim will share common questions of law and fact and does not upset complete diversity.
the pilot failed to raise this issue at the final pretrial conference, and, as a result, this issue was excluded from the final pretrial order? What is the rule regarding the final pretrial order?
After a pretrial conference, the judge must enter a pretrial order under Federal Rule of Civil Procedure (FRCP) 16(c). A pretrial order might summarize admissions of fact made by the lawyers, list the witnesses to be presented, and narrow the issues to be litigated. This pretrial order is binding during the rest of litigation unless the court modifies it. A court will only modify a pretrial order to “prevent manifest injustice.”
A is correct. FRCP 16(e) states, “the court may modify the order issued after a final pretrial conference only to prevent manifest injustice.”
A beneficiary of a trust, who is a citizen of State A, has sued the trustee in federal court in State A for failing to correctly distribute the income from the trust, seeking an accounting. The trustee was personally served with process and the complaint by the beneficiary’s attorney while the trustee was vacationing in State A. The trustee is a citizen of State B, and the accounts that are the subject of the trust are located in State B.
What is the trustee’s best response to the complaint?
A service of process can be made to another person even if he is not at his house, and made personally. If it is by someone who is 18 years of age and is not the plaintiff.
Also side rule in this question because the service of process was made to the trustee.
The court in State A lacks personal jurisdiction over the trustee. Although the trustee was served in State A, the facts fail to indicate any other contacts between the trustee and State A, and the trust assets are located in State B. In addition, the trustee was sued in a representative capacity but was served while in State A on a personal vacation. Thus, the trustee can argue that the service did not establish personal jurisdiction over him concerning his role as trustee. Further, the trustee has no minimum contacts as a trustee with State A to satisfy the requirements of fair play and substantial justice. See Hanson v. Denkla
General Rule for Service of process when made in another state if plaintiff is vactioning?
Generally, if a defendant voluntarily travels to the forum state and is served while physically present there, the state has proper personal jurisdiction over that defendant, even if the defendant has no other contacts with the state. The general rule is that due process is satisfied by mere service of process in this scenario and personal jurisdiction will be proper.
The question is can involuntary dismissal be considered as adjudication on merits?
Under FRCP 41(b), an involuntary dismissal for failure to prosecute will operate as an adjudication on the merits.
Interrogatories when to be served?
Interrogatories may not be served until the parties have made a discovery plan
