Pretrial Matters

Question 1

A complaint must include a short statement of the grounds for the court’s jurisdiction, a short statement of the claim showing that the claimant is entitled to relief, and:

Answer 1

A complaint must include a short statement of the grounds for the court’s jurisdiction, a short statement of the claim showing that the claimant is entitled to relief, and a demand for judgment for relief (which may be in the alternative).

Question 2

If a defendant waives service of process, she waive the right to object to venue and personal jurisdiction?

Answer 2

If a defendant waives service of process, she does not waive the right to object to venue and personal jurisdiction. (An objection to subject matter jurisdiction may be raised at any time, even on appeal.)

Question 3

When are named representatives permitted to sue on behalf of a class?

Answer 3

Named representatives will be permitted to sue on behalf of a class if: (i) class is so numerous that joinder of all members is impracticable; (ii) common questions of law or fact; (iii) named parties’ interests are typical of the class; (iv) named representatives will ensure the fair and adequate representation of the interests of absent members of the class; and (v) action meets the definition of any of the following three types of class actions found in Rule 23(b): i. Separate actions by class members would create a risk of inconsistent results or, as a practical matter, would impair the interests of other absent members of the class; or ii. A defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; or iii. There are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication.

Question 4

Who do Rule 11 sanctions apply to?

Answer 4

Rule 11 sanctions may consist of monetary penalties or nonmonetary directives and may be imposed on parties, attorneys, or law firms that are responsible for the violation. Absent exceptional circumstances, a law firm is responsible for the conduct of its employees.

Question 5

In a federal question case, the action is always deemed commenced for statute of limitations purposes when:

Answer 5

In a federal question case, the action is deemed commenced for statute of limitations purposes when the complaint is filed with the court.

Question 6

In a diversity case, the action is deemed commenced for statute of limitations when:

Answer 6

In diversity cases, the state rule for determining when the action is commenced applies. Thus, depending on the state rule, an action may be commenced for statute of limitations purposes when process is served on the opposing party.

Question 7

In an action based on diversity jurisdiction, may D implead a 3rd party defendant for an indemnity claim when the 3rd party is from the same state as D?

Answer 7

D may implead a 3rd party defendant who is from the same state into an action that is based on diversity jurisdiction by impleading the 3rd party under supplemental jurisdiction. An indemnity claim automatically meets the “common nucleus of operative fact” requirement for ancillary jurisdiction.

Diversity jurisdiction also just requires each D to have a different citizenship from each P.

Question 8

Parties who are injured in car accidents may join in the same action as plaintiffs under the permissive joinder rule because:

Answer 8

Parties injured in car accidents may join in the same action as plaintiffs under the permissive joinder rule because the plaintiffs’ claims arise out of the same occurrence and a question of law or fact (defendant’s negligence) is common to all of the plaintiffs. The general rule is that parties may join an action as plaintiffs or be joined as defendants whenever some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transaction, and there is a question of fact or law common to all the parties.

Question 9

What happens when a default is entered against a D?

Answer 9

If a default is entered against D, he loses the right to contest liability, but he still may be heard at the hearing for damages. Note that it is fairly common to have the court set aside entry of default (unlike a default judgment).

Question 10

When can a defendant raise the defense of lack of subject matter jurisdiction for the first time?

Answer 10

At any time, including on appeal

Question 11

Under certain circumstances, a _______ may be issued without notice to the other party.

Answer 11

A court may grant an ex parte temporary restraining order if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition. The other requirements are that the moving party must (i) certify in writing all efforts she made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and (ii) provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained.

Question 12

The plaintiff used fraudulent means to get the defendant to come into the state so that the plaintiff could serve him with process.

Is there valid service of process? Is there valid personal jurisdiction?

Answer 12

Because the plaintiff used fraudulent means to get the defendant to come into the state, service of process on the defendant is invalid and the court did not acquire personal jurisdiction over the defendant.

Question 13

What factors are required in order for an otherwise nonappealable interlocutory order to be appealable under the Interlocutory Appeals Act?

Answer 13

Review under the Interlocutory Appeals Act is discretionary with the court and may be available when: (i) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case, and (ii) at least two appellate court judges agree to hear the appeal.

Question 14

What are interlocutory (nonfinal) orders that may be immediately appealed?

Answer 14

Interlocutory (i.e., nonfinal) orders that may be immediately appealed include:

(i) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction),
(ii) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships,
(iii) decrees in admiralty cases that find liability but leave damages to be assessed later,
(iv) a patent infringement order where only an accounting is wanting, and
(v) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.

Question 15

As a general rule, a notice of appeal must be filed with the district court within ____ days from the entry of judgment.

Answer 15

30

Question 16

When an action involves multiple claims or parties, and a judgment is entered that disposes of only some of the parties or claims, the judgment:

Answer 16

When an action involves multiple claims or parties, and the court enters a judgment as to fewer than all the claims or all the parties, it is deemed a final, appealable judgment only to the extent the court makes an express determination that there is no just reason for delay.

Question 17

An inventor brought an action in federal court against a company, alleging that their product infringed a patent owned by him. The company denied the allegations of the inventor’s complaint, and asserted a counterclaim against the inventor for breach of contract, based on a transaction between them unrelated to inventor’s claim.

After completion of discovery, the company moved for summary judgment dismissing inventor’s claim. The court granted the motion, thus leaving only the company’s counterclaim for breach of contract to be adjudicated.

Which of the following statements most accurately describes the inventor’s right to appeal the court’s grant of the motion for summary judgment?

A The inventor may immediately appeal the judgment because summary judgment is a final judgment.

B The inventor may immediately appeal the judgment because his claim does not arise out of the same transaction or occurrence as the company’s claim.

C The inventor may not appeal the judgment until the company’s claim against him has been adjudicated.

D The inventor may not immediately appeal the judgment unless the court provides that it is a final judgment and expressly determines that there is no just reason for delay.

Answer 17

(D) is correct. When a court grants summary judgment on some but not all of the claims in an action, the court’s order is not final and thus not appealable unless the court expressly determines that there is no just reason to delay entry of judgment. Unless the trial judge makes that express determination, its order determining the merits of fewer than all of the claims is not a final judgment and is not appealable.

Question 18

The aerospace company filed a diversity action against the propeller company for breach of contract, claiming breach of its express warranty and breach of the implied warranty of merchantability.

At end of trial, the aerospace company submitted proposed jury instructions. The court refused to give these instructions, and instead instructed the jury on the elements of breach of express and implied warranty. The aerospace company did not object.

After the jury returned a verdict for the propeller manufacturer, the aerospace company moved for a new trial on the ground that the court erroneously refused to accept the aerospace company’s requested jury instructions. The court denied the motion and the aerospace company filed a timely appeal.

What are the aerospace company’s rights on appeal?

Answer 18

Because the aerospace company did not timely object to the instructions, the court will review them using a plain error standard of review. In order to reserve its right to appeal an error in an instruction given or, as is the case here, a failure to give an instruction, a party must object on the record before the instructions are given. If adequately preserved, the instructions are reviewed using an abuse of discretion standard. However, if the objection is not made (and therefore not preserved for full appellate review), then the court’s review is limited to considering whether there was a plain error in the instruction that affected substantial rights.

Question 19

A woman sued her employer for sexual harassment. At the close of the trial, the employer made a motion for judgment as a matter of law. The court denied motion.

When the jury returned a verdict in favor of the woman, the employer renewed its motion for judgment as a matter of law. Also, the employer moved for a new trial, asserting that the verdict was against the weight of the evidence. The court denied both motions.

If the employer appeals the denials of both the renewed motion for a judgment as a matter of law and the motion for a new trial, what is the appropriate standard of review?

Answer 19

When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs a de novo standard. It does so because the issue is one of law.

When an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion. Note that when a renewed motion for judgment as a matter of law and a motion for a new trial are made in the alternative and the renewed motion is granted, the court rules hypothetically on the new trial motion so that no remand is required if the ruling on the judgment as a matter of law is subsequently reversed on appeal.

Question 20

When may a court relieve a party from final judgment or order?

Answer 20

On motion and just terms, the court may relieve a party from a final judgment or order on the following grounds: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment.

For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year from the judgment; for the other grounds, the motion must be made within a reasonable time. (But remember that a lack of subject matter jurisdiction may be raised at any time.) Such a motion is left to the trial judge’s discretion, and, on appeal, her decision will be reviewed on an “abuse of discretion” standard.

Question 21

If no federal question is involved and diversity does not exist when a case is commenced, removal will:

Answer 21

If no federal question is involved and diversity does not exist because a party is a co-citizen of an opposing party (but the amount in controversy is satisfied), removal will be permitted if the nondiverse parties are thereafter dismissed from the action, the requirements for diversity jurisdiction are then present, and not more than one year has passed since the case was commenced in state court. This rule is subject to certain limitations.

Question 22

T/F: In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state

Answer 22

True. In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state. This is because venue for an action removed under section 1441(a) lies in the federal district court “embracing the place where such [state] action is pending.”

Question 23

T/F: When a defendant attempts to remove a case from state court to federal court, the state court need not have had subject matter jurisdiction over the case.

Answer 23

True.

Question 24

On August 1, the plaintiff, a resident of State A, sued two defendants in State A for personal injuries arising out of an automobile accident. One defendant is a citizen of State A while the other is a citizen of State B. The lawsuit claimed damages of $500,000. The plaintiff quickly reached a settlement agreement with the defendant from State A, and the court dismissed that defendant by order on August 16. The order is served on the remaining defendant on August 20. On September 18, the remaining defendant files a notice of removal with the court, which the plaintiff opposes.

How should the court rule on the defendant’s notice of removal?

Answer 24

The court should rule for the remaining defendant. There are essentially two time restrictions on removal of a diversity case to federal court: (1) a case based on diversity must be removed within 30 days of the defendant’s receipt of a copy of the paper (order, motion, etc.) that makes the case removable; but (2) in no event may the case be removed more than one year after it was commenced in state court. [28 U.S.C. §1446] Here, it is the 30-day time limit that is in question; i.e., specifically, whether the 30-day clock starts to tick on August 16 (when the case became removable) or on August 20 (when the defendant learned that the case became removable).

Question 25

A plaintiff, a citizen of State A, sued a defendant, a citizen of State B, in state court in State B for breach of a contract to build a house for $200,000. The defendant counterclaimed for $300,000, alleging that the plaintiff breached an earlier contract by failing to pay for a house that the defendant had built. The plaintiff files a notice of removal to federal court in State B.

Can the case properly be removed to the federal court in State B?

Answer 25

Removal is not proper. A plaintiff may not remove on the basis of a counterclaim against him that could have been brought in federal court. *Only defendants may remove a case to federal court.

Question 26

A State A citizen and a State B citizen were in an automobile accident in State B. The State B citizen filed a negligence action for $500,000 against the State A citizen in a federal district court located in State B. The State A defendant would prefer to litigate the case in a State B state court. The State A defendant thus filed a notice of removal, seeking to transfer the case to a State B state court.

Should the federal court grant the motion?

Answer 26

The court should not grant the motion. Defendant may remove an action that could originally have been brought in the federal courts, based on either a federal question being presented or on diversity of citizenship. There is no similar provision that allows a case initially filed in federal court to be moved to state court. (An action that was wrongfully removed from state court to federal court may be remanded back to state court, but that procedure is not applicable here because the case was initially filed in federal court.)

Question 27

Under the doctrine of issue preclusion (collateral estoppel), a judgment in a prior case will be sufficient to bind the plaintiff or defendant in subsequent actions on different causes of action as to issues that were:

Answer 27

Under the doctrine of issue preclusion (also called collateral estoppel), a judgment binds the plaintiff or defendant in subsequent actions on different causes of action as to issues that were actually litigated and essential to the judgment.

Question 28

T/F: Is this a sufficient basis for applying claim preclusion - earlier and latter causes of action must be brought by the same claimant against the same defendant.

Answer 28

True. For res judicata to apply, the earlier and latter causes of action must be brought by the same claimant against the same defendant.

Question 29

For claim preclusion to apply, what must be shown?

Answer 29

Before merger or bar apply, it must be shown that (i) the earlier judgment is a valid, final judgment “on the merits”; (ii) the cases are brought by the same claimant against the same defendant; and (iii) the same “cause of action” (or “claim”) is involved in the later lawsuit.

Question 30

Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is prevented from asserting the same cause of action in a later lawsuit by the doctrine of claim preclusion (res judicata).

When the claimant won the earlier lawsuit, the claim is said to be:

Answer 30

merged into the prior judgment.

Question 31

The taxi’s passenger commenced a negligence action against the taxi driver, properly serving the taxi driver with the summons and complaint. The taxi driver turned the summons and complaint over to his insurance company. After trial, the jury returned a verdict in favor of the passenger, finding that the taxi driver’s negligence was the sole cause of the crash.

The passenger then commenced a second action, this time against the owner of the taxi. The owner also had no right of indemnity from the taxi driver. The passenger alleged that the taxi driver’s negligence was the sole cause of the crash and that the owner was vicariously liable. The passenger immediately moved for partial summary judgment against the owner based on the finding of the taxi driver’s negligence in the prior action.

If the court denies the motion, what is the most likely reason?

Answer 31

The taxi owner is not precluded from litigating that issue. For a party to be bound by issue preclusion, (i) there must have been a final judgment; (ii) the issue must have been actually litigated and determined; (iii) the issue must have been essential to the judgment; and (iv) the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action. Here, it is the last element that is missing. The taxi owner was not a party to the prior action, and there is no indication that the taxi owner was in privity with the taxi driver.

Question 32

An employee filed an action against his employer in federal district court, claiming unlawful age discrimination in employment. The employee did not like the judge who was assigned to the case because the employee perceived the judge to be antagonistic to employment discrimination claims. Two weeks after filing the action and before the employer served its answer to the complaint, the employee voluntarily dismissed the action. Several months later, the employee filed an identical action in the same court.

Is the employee’s claim barred because of the prior dismissal?

Answer 32

The employee’s claim is not barred because of the prior dismissal. A plaintiff may of right dismiss an action one time without prejudice before the defendant serves its answer.

A voluntary dismissal is not an adjudication on the merits and a plaintiff may voluntarily dismiss a case for any reason.

Question 33

Can a non-party use issue preclusion to sue a defendant? (Defendant was found guilty in suit against US government, and non-party plaintiff wants to bring a suit based on the merits of that case)

Answer 33

Under the traditional mutuality rule, only someone who was a party in the previous case can use issue preclusion. However, this rule has been modified to allow nonparties to use issue preclusion in certain circumstances. When a nonparty wants to use a previous judgment offensively, the court must consider whether it would be fair and equitable to allow the nonparty to do so.

Question 34

A citizen of State A ran a red light at a traffic intersection, striking a pedestrian, a citizen of State B, who was lawfully in the middle of the crosswalk at the time. The accident occurred in State B. Despite the pedestrian’s extensive injuries, the driver was more concerned with the damage to his new automobile. The driver sued the pedestrian in a state court of State B for $90,000 for damage to his car. The driver promptly lost, and then decided to bring suit in federal court, claiming diversity jurisdiction.

May the driver successfully bring his claim in federal court?

Answer 34

The driver will not be successful because the claim is barred. Bar occurs when a plaintiff loses. The adverse judgment “bars” the plaintiff from relitigating the cause of action.

Question 35

Three drivers were in an automobile accident in a city in State A. The drivers were citizens of State A, State B, and State C. The State B driver filed a tort action against the other two in a State A state court, seeking $300,000 for her severe injuries. The State C driver wants to remove the action to a federal district court.

Is the action removable?

Answer 35

The action is not removable. D may remove an action that could have originally been brought in the federal courts. (In other words, subject matter jurisdiction based on either a federal question being presented or on diversity of citizenship would have been present had the case been filed in federal court.) However, a case may not be removed on the basis of diversity jurisdiction if a defendant is a citizen of the state in which the action was filed. Here, the action was filed in State A against a State A defendant; thus, the case may not be removed, even though it is a State C defendant who is seeking removal.

Question 36

A resident of the District of State A properly brought a diversity action in federal court against a resident of the District of State B and a resident of the District of State C for a cause of action that arose from events that occurred in the District of State D.

In which judicial districts is venue proper?

Answer 36

Only District D (where events arose from).

Venue is not proper in the judicial district of either D’s residence; the rule states that venue is proper in “a judicial district where any D resides, if all defendants reside in the same state.” Since Ds reside in different states, neither of their judicial districts of residence is proper in a single action. State A is not a proper venue because a plaintiff’s residence is not a valid basis for fixing venue.

Question 37

A resident of City A (located in the Northern District of State A) brought a diversity action against a resident of City B (located in the Eastern District of State B). The cause of action arose in City B. The defendant commutes daily from his home in City B to his office in City A and would find it much more convenient to litigate the action there than in City C, where the appropriate court for the Eastern District of State B is located. The plaintiff would also find it more convenient to litigate in City A, but will go to City C if necessary.

May the action be litigated in City A?

Answer 37

The action may be litigated in City A because improper venue may be waived. D may inform P that he will waive any objection to venue in City A. Given that P has indicated a willingness to bring the action in City C if necessary, D would not seem to gain any advantage by insisting on proper venue at great inconvenience to him, unless other factors make City C a preferable venue.

Question 38

T/F: The place where process is served has no effect on venue.

Answer 38

True.

Question 39

A state’s civil procedure rules allow for “nail and mail” service (posting the summons at the defendant’s dwelling and thereafter mailing him a copy by certified mail) when “regular” service (service by physical delivery or by leaving a copy of the complaint with someone of suitable age and discretion at the defendant’s usual place of abode) cannot be accomplished with due diligence. A plaintiff brought suit against a defendant in the federal district court for that state. After the plaintiff’s special process server made many attempts at serving the defendant, the plaintiff’s attorney directed the process server to nail the complaint and summons to the defendant’s front door, and the attorney mailed (by certified mail) a copy to the defendant in accordance with the state rule.

Has the defendant been properly served?

A Yes, if “nail and mail” service is reasonably calculated to give the defendant notice of the action.

Incorrect
B Yes, because under the Erie doctrine the federal court must apply the state’s service of process rules.

Answer 39

(A) Summons and complaint may be served on an individual other than an infant or incompetent pursuant to the law of the state in which the district court is located. Notwithstanding, the state provision must be constitutional; i.e., it must be reasonably calculated to give the defendant notice of the action. Thus, (A) is correct.

(B) is incorrect because the Erie doctrine provides that federal courts apply state substantive law but federal procedural law. The Federal Rules expressly authorize the use of state service of process methods. Thus, the Erie doctrine is inapplicable.

Question 40

A plaintiff filed a negligence action against a defendant in federal district court, seeking compensatory damages arising from an automobile accident. The defendant is covered by an insurance policy pursuant to which his insurer will pay any judgment that the plaintiff obtains against the defendant.

Is the plaintiff entitled to obtain information about the defendant’s insurance coverage prior to trial?

Answer 40

The plaintiff is entitled to obtain information about the defendant’s insurance coverage prior to trial. Without waiting for a discovery request, a party must provide to the other parties copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

*Insurance agreements must be initially disclosed; they are not considered outside the scope of discovery.

Question 41

A citizen of State A filed a negligence action against a State B defendant in a State A state court after a traffic accident in State A, seeking $200,000 in damages. The plaintiff immediately served the defendant with process. Fifty-nine days later, the defendant removed the case to federal district court. The plaintiff then timely filed a motion in the federal court to remand the case back to state court.

How should the court rule on the plaintiff’s motion to remand?

Answer 41

The court should grant the motion to remand the case because the notice of removal was not timely.

D can remove an action that could have originally been brought by the plaintiff in the federal courts. But removal must be sought within 30 days after receipt by or service on D of the initial pleading or summons, or, if the case is not initially removable, within 30 days of the case becoming removable. Additionally, removal based on diversity jurisdiction cannot be had if more than one year has passed since the suit was filed unless bad faith on the part of the plaintiff can be shown.

Here, the case was immediately removable, and D should have filed a notice of removal 30 days from receipt of service of process, but he did not do so. Accordingly, on a timely motion to remand, therefore, the court should remand the case to state court.

Question 42

A plaintiff sued an auto manufacturer for negligence after a car accident involving the plaintiff’s car that was made by the auto manufacturer. Sixty days after service of the complaint and 40 days after service of the manufacturer’s answer that contained no counterclaim, the plaintiff filed a motion seeking to file an amended complaint adding a claim for strict products liability against the auto manufacturer stemming from the same incident. The statute of limitations for strict products liability claims expired one week before the motion was filed.

How should the court rule on the plaintiff’s motion?

B - Grant the motion, because the amended complaint relates back.

C - Deny the motion, because, while the motion is timely, the proposed claim is futile because the statute of limitations has run.

Answer 42

The court should grant the motion. FRCP 15 states that leave of court (to grant motions to amend) is to be “freely given when justice so requires.” Proposed claims may be considered to “relate back” to the date of the original pleading in which the claim was made. Although the statute of limitations for the proposed products liability claim had expired at the time the motion was made, the amended complaint asserting a products liability claim relates back to the original filing because that claim stems from the same facts alleged in the original complaint, and the statute of limitations had not expired at the time of the original filing.

Here, 40 days have passed since the auto manufacturer filed its answer, so amending as a matter of course is not permitted (it is 21 days). (C) is incorrect because the claim can relate back to a complaint filed at a time when the proposed claim was still viable, the proposed claim is not considered futile.

Question 43

An electronics company sued a competitor in federal court for patent infringement, alleging that the competitor had copied several aspects of the electronic company’s latest smartphone model. The competitor plans to defend the lawsuit but is worried about being forced to reveal confidential research and development information. The parties scheduled a conference under Rule 26(f) of the Federal Rules of Civil Procedure. At the conference, the parties are to discuss whether they need a court order protecting trade secrets and other related confidential information.

Is this a proper discussion for a Rule 26(f) conference?

Answer 43

This is a proper discussion for a Rule 26(f) conference because the parties must develop a discovery plan. At a Rule 26(f) conference, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan. The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court.

Question 44

What is substantive (and thus “state law”)?

Hint: Eerie doctrine

Answer 44

1. statutes of limitation
2. tolling statutes of limitation
3. choice of law rules
4. elements of a claim or defense

Question 45

Where is venue proper?

Answer 45

1. where all the Ds live
2. where the injury/action is
3. If not the above, then where PJ over Ds

Question 46

When is transfer possible?

Answer 46

If venue is proper, can transfer for convenience of the parties or witness to any court where case could have originally been filed. All parties may consent.

If original venue was improper, a court must dismiss or “in the interests of justice” transfer the case to where it could have been brought.

Question 47

Ds can remove a case into federal court if the case has SMJ and for cases removed on the basis of diversity

Answer 47

no D is a citizen of the state where action is filed

Question 48

P can file motion to remand. If the reason is for something other than SMJ, how long does the P have?

Answer 48

30 days

Question 49

To get a temporary restraining order, the moving party must: (3)

Answer 49

1. state specific facts showing irreparable injury
2. certify in writing efforts to notify adverse party
3. provide security to pay for damages if this ends up being wrongful

Question 50

To get a preliminary injunction, the moving party must: (4)

Answer 50

Notice!

1. show P will suffer irreparable injury
2. harm to P > harm to D
3. likely to be successful on the merits
4. public interest favors this

Question 51

A State A citizen filed a civil action against a State B citizen in a State B state court. The action arose from events that took place in State C. State C has only one federal district court (the District of State C). State B has two, the Northern District of State B and the Southern District of State B. The State B citizen resides in the Southern District of State B, while the state court action filed by the State A citizen is pending in a court located in the Northern District of State B.

If the State B citizen wishes to remove the action to federal district court, in which federal district should the State B citizen file a notice of removal?

A - Either the Southern District of State B, the Northern District of State B, or the District of State C.

B - Either the Southern District of State B or the District of State C.

C - Either the Southern District of State B or the Northern District of State B.

D - The Northern District of State B only.

Answer 51

The notice of removal should be filed in the Northern District of State B only. The federal removal statute provides that the notice of removal should be filed in the federal district court for the district that geographically encompasses the state court from which the action is being removed. Thus, (D) is correct.