Random Questions Flashcards
T/F: Applicable FRCP supersede state law in federal court as long as the rule comports with the requirements of the Rules Enabling Act (rule governs practice and procedure and does not modify or abridge substantive rights).
True.
P was injured in a car accident involving two cars. He filed a negligence against both drivers (D1 and D2) in federal district court, holding them jointly and severally liable for $500,000. P is a citizen of A and the drivers are citizens of B. D1 asserted a cross-claim against D2, claiming that D2’s negligence was the sole cause of the accident and seeking to recover from D2.
Does the federal court have SMJ over the cross-claim?
Yes, the court has supplemental jurisdiction over the cross-claim. P’s suit against the drivers has diversity jurisdiction because there is diversity of citizenship and it exceeds $75,000.
There is supplemental jurisdiction because this is a related claim to the first and it derives from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding.
When must D serve an answer or other response?
D must serve an answer or other appropriate response within 21 days after being formally served with process.
If D waives service of process, they are allowed 60 days from date on which P mailed the summons and complaint.
What is an amended complaint that relates back?
Under FRCP 15c, an amended complaint relates back to the time of the original complaint if it asserts a claim that arises from the same transaction set forth in the original complaint and, within the time prescribed for service of process, the new D received such notice of the action that it will not be prejudiced in the defending the merits and either knew or should have known that the action would have been brought against it but for a mistake concerning the proper party’s identity.
*There is no need for P to show it exercised reasonable care in naming the proper D.
When should a temporary restraining order be granted ex parte?
A temporary restraining order may be granted when it is necessary to prevent irreparable injury to a party, and the injury will result before a preliminary injunction hearing can be held.
Generally, a court may grant an ex parte temporary retaining order without notice of the hearing to the adverse party if the moving party:
(i) gives specific facts in an affidavit or verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition;
(ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and
(iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained.
What happens if a party fails to provide discovery or provides incomplete discovery?
The other party may move to compel discovery. It must certify that the moving party has made a good faith attempt to confer with the opponent to obtain discovery without court intervention. The certification and an actual attempt at resolving the discovery dispute without court intervention are prerequisites to an award of reasonable expenses.
If a leading question and response are made during a deposition and the deponent’s attorney does not object, what is the effect at trial?
The deponent’s response to the leading question (and rest of the deposition) can be read at trial and is admissible. Errors of any kind which could have been obviated if promptly presented are waived unless seasonable objection is made at time of taking the deposition.
Can P voluntarily dismiss a case when D has filed an answer and a counterclaim?
No. Because D has filed an answer, P needs a court order or stipulation signed by all parties to voluntarily dismiss.
If D has not answered or filed a motion for summary judgment, P may dismiss case by filing a notice of dismissal. When a voluntary dismissal without leave of court is not available (i.e. there’s been an answer, motion, or previous dismissal), the court has discretion to grant dismissal on such terms and conditions as court deems proper. The dismissal is without prejudice unless the court specifies otherwise. If there is a counterclaim pending in an action, there can be no dismissal over the D’s objection unless the counterclaim is pending.
How is default judgment entered?
The judge may enter default judgment as long as additional notice is provided. D against whom a default is entered loses the right to contest liability and the defaulting party can still be heard at the hearing for damages. If D has “appeared” at all, he must be notified of the request for default judgment by first-class mail at least 7 days before the hearing on the application for a default judgment.
What may be immediately appealed?
A party may appeal, as of right, any order granting, continuing, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.
Before claim preclusion applies, it must be shown that:
(i) the earlier judgment is valid, final judgment “on the merits”
(ii) cases are brought by same claimant against the same defendant
(iii) same “cause of action” or “claim” is involved in the later lawsuit
A property owner sued a developer in federal court alleging breach of an oral contract. According to the property owner, only one other person of questionable credibility heard the conversation in which the contract was allegedly made. That person was listed in the pretrial conference order. The next day, five days before the scheduled trial, the property owner’s attorney discovered that a disinterested person also heard the conversation, and he wanted to call this witness at trial as well. He immediately notified the developer of the witness and his change in plans.
May the property owner call the additional witness?
The property owner may call the additional witness only if the court modifies the pretrial order, since a pretrial order controls the subsequent course of an action unless modified. The order will be modified “only to prevent manifest injustice.”
A tourist and his friend visited an amusement park located in State A. One of the rides malfunctioned, injuring the tourist. The friend, who witnessed the accident, sued the amusement park for negligent infliction of emotional distress in the federal court for State A, properly invoking diversity of citizenship jurisdiction. The friend’s complaint alleges that he and the tourist were lifelong friends and that the friend suffered severe emotional distress from witnessing the tourist’s injuries.
The highest court of State A has held that bystanders may not recover for emotional distress from witnessing another’s injuries unless the bystander and the injured person are related by blood or marriage.
Which of the following motions would best achieve the amusement park’s goal of expeditiously disposing of the action?
A - pre-answer motion to dismiss for failure to state a claim on which relief may be granted.
B - motion for summary judgment.
C - motion for judgment on the pleadings.
(A) The amusement park’s most expeditious course of action would be to file a pre-answer motion to dismiss under Rule 12(b) for failure to state a claim on which relief may be granted. A pre-answer motion to dismiss a complaint for failure to state a claim addresses the adequacy of the pleadings. The allegations of the complaint are deemed true for purposes of the motion. Here, the complaint alleges that the bystander was a lifelong friend of the victim, which is insufficient as a matter of law because State A requires bystanders to be related by blood or marriage to the victim.
(B) is incorrect because a party moving for summary judgment submits evidence (typically affidavits and discovery materials) to establish that there are no issues of material fact. Here, the amusement park need not gather or submit evidence because the pleading’s allegations are in themselves insufficient to support the bystander’s claim.
(C) is incorrect because a motion for judgment on the pleadings under Rule 12(c) can be made only after the pleadings are closed (i.e., after the defendant files its answer). Thus, the amusement park could more efficiently dispose of the case by making a pre-answer motion to dismiss, rather than filing an answer and then making a motion for judgment on the pleadings.
A credit card company filed a civil action against a consumer in federal district court seeking to recover the unpaid balance on the consumer’s account. The credit card company properly served process on the consumer, but the consumer failed to file or serve a timely answer to the complaint. The clerk of court on motion of the credit card company made an entry of default, but default judgment has not been entered.
On which grounds may the court set aside the entry of default?
A - For the same limited grounds for which any court judgment may be set aside.
B - Only if the court finds that the consumer could not have filed and served a timely answer despite using reasonable diligence.
C - If the consumer demonstrates that there was good cause for his failure to file and serve a timely answer and that he has a viable defense.
D - On any grounds that the court, in its discretion, finds just.
(C) An entry of default may be set aside for “good cause shown.” Although not specifically required by the Federal Rules, a majority of courts also will require some showing of a meritorious defense.
Pursuant to a contract, a landscaper performed $30,000 of landscape work for a homeowner. By coincidence, the homeowner and the landscaper were involved in an automobile accident that was unrelated to the landscape work. The homeowner was injured in the accident and sued the landscaper in federal district court for negligence, seeking $100,000 in damages. The homeowner and the landscaper are citizens of different states.
May the landscaper assert and maintain a counterclaim against the homeowner for breach of contract, seeking the $30,000 due under the landscape contract?
A - No, because the Federal Rules of Civil Procedure permit a counterclaim only if the counterclaim arises from the same transaction or occurrence as the plaintiff’s initial claim.
B - No, because, while the court has diversity of citizenship jurisdiction over the homeowner’s negligence claim and the Federal Rules of Civil Procedure permit the counterclaim, the federal court does not have subject matter jurisdiction over the landscaper’s contract claim.
C - Yes, because the Federal Rules of Civil Procedure permit the counterclaim, and the court has diversity of citizenship jurisdiction over both claims.
D - Yes, because the court has diversity of citizenship jurisdiction over the homeowner’s negligence claim, and it has supplemental jurisdiction over the landscaper’s contract claim because it is a compulsory counterclaim.
The landscaper cannot assert and maintain a counterclaim against the homeowner for breach of contract because the federal court does not have SMJ over the contract claim. The court has diversity jurisdiction over the negligence claim because there is complete diversity and the amount in controversy exceeds $75,000. A compulsory counterclaim (a claim that arises out of the same transaction or occurrence as the plaintiff’s claim) does not need to meet the jurisdictional amount requirement for diversity jurisdiction. But a permissive counterclaim (a claim that arises out of an unrelated transaction) must meet the jurisdictional amount requirement. Here, the landscaper’s contract claim would be a permissive counterclaim because it is unrelated to the negligence claim arising from the accident. Therefore, the claim’s amount in controversy would have to exceed $75,000. The claim is only for $30,000; therefore, the court does not have subject matter jurisdiction over the contract claim.
