MBE - civil procedure

What are the four abstention doctrines?

(1) *Pullman* - Resolution of unsettled state law in state court would moot federal constitutional issue (2) *Bufurd* - Injunction or declaratory judgment would interfere with complex state regulatory scheme that serves important state policy & provides timely & adequate judicial review (3) *Colorado River* - Pending state proceeding involving substantially same parties & issues presents exceptional circumstances that justify conserving judicial resources (4) *Younger* - Injunction or declaratory judgment would interfere with pending state proceeding that involves important state interest & provides adequate opportunity to litigate federal claims

Generally, where is venue proper?

(1) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or (2) A judicial district in which a "substantial part of the events or omissions" on which the claim is based occurred, or where a "substantial part of the property" that is the subject of the action is located.

The "100-mile bulge rule" establishes personal jurisdiction over a party who is: (1) added to the suit through impleader or required joinder and (2) served with process within 100 miles of the federal court where the suit is pending.

(1) Added to the suit through *impleader* OR *required joinder*, AND (2) Served with process within 100 miles of the federal court where the suit is pending.

A plaintiff seeking a preliminary injunction must establish that:

(1) He is likely to succeed on the merits; (2) He is likely to suffer irreparable harm in the absence of relief; (3) The balance of equities is in his favor; AND (4) The injunction is in the best interest of the public.

3 types of personal jurisdiction

(1) In personam jurisdiction (2) In rem jurisdiction (3) Quasi-in-rem jurisdiction

What seven defenses may be raised in a motion filed under Rule 12(b)?

(1) Lack of subject matter jurisdiction; (2) Lack of personal jurisdiction; (3) Improper venue; (4) Insufficient process; (5) Insufficient service of process; (6) Failure to state a claim upon which relief can be granted; and (7) Failure to join a necessary or indispensable party under Rule 19.

3 types of class actions

(1) Risk of Prejudice - The class is maintainable if the prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would impair the interests of the class members. (2) Final Equitable Relief - A class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party. (3) Common Legal or Factual Questions - A class can be certified if questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method for bringing about a fair and efficient adjudication of the controversy.

Under *Rule 38*, a party may demand a jury trial on any triable issue (i.e., any legal claim where the amount in controversy exceeds $20) by:

(1) Serving the other parties with a written jury trial demand *no later than 14 calendar days after the last pleading* directed to that issue is served, AND (2) Filing the jury trial demand with the court within a reasonable time after service of the demand.

What are the four requirements for a class action?

(1) The class must be so numerous that joinder of all members is impracticable (*numerosity*); (2) There must be questions of law or fact that are common to the class (*commonality*); (3) The claims or defenses of the representatives must be typical of the class (*typicality*); and (4) The representatives must fairly and adequately protect the interests of the class (*adequacy*).

A subpoena of a non-party for oral deposition may be served and the deposition conducted without the court's leave or the parties' stipulation UNLESS:

(1) The deposition exceeds the 10-deposition limit (which includes both oral and written depositions) (2) The deposition is sought before the parties' initial planning conference, OR (3) The deponent was already deposed in the action. *Note:* Leave of court is always required when deponent is in prison.

5 bases for in personam jurisdiction?

(1) Voluntary Presence (2) Domicile (3) Consent (4) Long-arm statutes (5) Attachment

3 factors a court consider when deciding to set aside a default judgment

(1) Whether the defendant's failure to act was willful; (2) Whether setting the default aside would prejudice the plaintiff; AND (3) Whether the defendant has presented a meritorious claim.

True or False: A judgment as a matter of law cannot be rendered with regard to a defense.

False - A motion for judgment as a matter of law is a request that the court issue a judgment *on any claim or defense* in the movant's favor because the evidence is legally insufficient for a reasonable jury to find in the nonmovant's favor

How long may a temporary restraining order remain in effect?

No longer than 14 days UNLESS good cause exists OR the adversary consents.

How many interrogatories may a party serve on another party under Rule 33(a)

No more than 25 written interrogatories on any other party.

A court can impose monetary sanctions for violations of Rule 11(b). Sanction proceedings can be initiated by:

(1) a party's motion, OR (2) on the court's own initiative, SO LONG AS the judge issues an order to show cause.

Venue is proper in any federal district where:

(1) any defendant resides, as long as all defendants reside in the same state, (2) a substantial part of the events occurred or a substantial part of the property at issue is located, or (3) any defendant is subject to the court's personal jurisdiction (if the first two provisions do not apply).

Under FRCP 4, a plaintiff can properly serve a defendant who is an individual located in the United States by:

(1) following the rules of the state where the court sits OR where service is made (2) having process delivered to the defendant personally (or to an agent authorized to receive process), OR (3) having process delivered to the defendant's dwelling and left with a resident of suitable age and discretion (i.e., old enough to possess the limited capacity necessary to comprehend the situation)

A party may obtain extraordinary relief *within one year of the entry of a final judgment* based on:

(1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence, OR (3) an opposing party's fraud, misrepresentation, or misconduct

A plaintiff may assert a third-party claim against a third-party defendant if:

(1) that claim arises out of the same transaction or occurrence as the plaintiff's claim against the defendant in the original complaint, and (2) the third-party claim satisfies original subject-matter jurisdiction.

The Class Action Fairness Act gives a federal court an alternative basis for subject-matter jurisdiction over a class action when:

(1) the class contains 100 members, (2) at least one class member is diverse from at least one defendant (i.e., minimally diverse), AND (3) the amount in controversy of the aggregated claims exceeds $5 million.

A federal court may grant a preliminary injunction when:

(1) the movant is likely to succeed on the merits, (2) the movant is likely to suffer irreparable harm in the absence of relief (i.e., harm that CANNOT be compensated by monetary damages), (3) the balance of equities is in the movant's favor, AND (4) the injunction is in the best interests of the public.

When the U.S. government is sued under the Federal Tort Claims Act for the tortious conduct of a federal employee, venue is proper where:

(1) the plaintiff resides, OR (2) where the act or omission complained of occurred.

An amended complaint will "relate back" to the date of the original complaint if:

(1) the same occurrence is at issue, (2) the new party received notice of the suit *within 90 days* after the original complaint was filed, and (3) the new party knew OR should have known that it would have been sued but for a mistake about its identity.

A plaintiff filed a complaint in federal court alleging that a cell phone application sold by the defendant infringed upon a patent held by the plaintiff. The complaint was signed by an associate at the large law firm that represented the plaintiff. The defendant filed a motion to dismiss, arguing that the cell phone application at issue did not actually perform as described in the complaint and thus did not violate the plaintiff's patent. The court held a hearing on the motion to dismiss. At the hearing, the defendant presented evidence that the application performed only functions not covered by the plaintiff's patent. The defendant also showed that the plaintiff's attorney had never actually used the application but had drafted the complaint based solely on his client's description of the application. The court granted the motion to dismiss. The court also issued an order requiring the plaintiff's attorney and his law firm to pay the defendant's attorney's fees, finding that the plaintiff's attorney had not conducted a reasonable inquiry into the factual contentions in the complaint. Which of the following is the best argument that the court erred in its order requiring payment of attorney's fees? (A) A court may not impose a monetary sanction under Rule 11 on its own initiative without issuing a show-cause order. (B) A court may not impose sanctions against a law firm unless the pleading at issue is signed by a partner. (C) An attorney may rely upon factual contentions put forth by the client in a pleading. (D) Attorney's fees are not a permissible sanction under Rule 11.

(A) A court may not impose a monetary sanction under Rule 11 on its own initiative without issuing a show-cause order.

Regarding injunctions, which of the following is FALSE? (A) A mandatory injunction prohibits a defendant from doing something. (B) A preliminary injunction can be issued prior to a full hearing on the merits, but it requires notice to the defendant and a hearing on whether it should be granted. (C) A temporary restraining order is used to preserve the status quo until the court can make a decision on a preliminary injunction. (D) If a temporary restraining order is issued without notice, the other party can make a motion to dissolve the order.

(A) A mandatory injunction prohibits a defendant from doing something. *Note:* this is a PROHIBITORY injunction

A jeweler who is a citizen and resident of a foreign country brought some jewels into the United States to sell at a convention. A buyer purchased the jewels from the jeweler, whom the buyer had not previously met but knew by reputation to be an honest businessperson. Subsequently, the buyer discovered that the jeweler had misrepresented the quality of the jewels. The buyer has filed a diversity action in the federal court for the district in which he resides against the jeweler based on a state-law claim of misrepresentation. The convention had been held in another state. The jeweler has timely filed a motion to dismiss this action based on lack of subject-matter and personal jurisdiction, as well as improper venue. The court properly determined that it has subject-matter and personal jurisdiction. Should the court grant the jeweler's motion as it relates to improper venue? (A) No, because a nonresident of the United States may be sued in any judicial district. (B) No, because the action is based on diversity jurisdiction, not federal-question jurisdiction. (C) Yes, because the action is based on a state-law claim. (D) Yes, because the cause of action arose in another state.

(A) No, because a nonresident of the United States may be sued in any judicial district.

A federal district court denied certification of an action as a class action. In doing so, the court made a mistake of law. Thirteen days after the entry of the district court's order, the plaintiff filed a petition with the clerk of the applicable circuit court for permission to appeal the denial of certification. Must the appellate court hear this appeal? (A) No, because entertaining this appeal is at the discretion of the appellate court. (B) No, because the petition was not timely filed. (C) Yes, because the district court denied rather than granted certification of the class. (D) Yes, because the district court made an error of law.

(A) No, because entertaining this appeal is at the discretion of the appellate court.

An air-freight handler had a four-year contract with an airport in a neighboring state to handle all air freight for the airport. The contract represented 80 percent of the air-freight handler's total business. Two years into the contract, the airport accepted an offer from another company to handle the business at two-thirds of the price of the contract with the air-freight handler. The airport notified the air-freight handler in writing that it had executed a contract with the other company and would be cancelling its contract with the air-freight handler. The air-freight handler brought suit in federal district court under diversity jurisdiction seeking injunctive relief to enforce the contract. Is the court likely to grant the air-freight handler's request for a preliminary injunction? (A) No, because monetary damages are potentially available to the air-freight handler. (B) No, because the complaint is premature, as the airport has not yet acted on its threat to breach the contract. (C) Yes, because the loss of 80 percent of its business constitutes irreparable harm to the air-freight handler. (D) Yes, if the court believes that it is likely that the air-freight handler would prevail in a breach-of-contract action.

(A) No, because monetary damages are potentially available to the air-freight handler.

A mother purchased an organic, soybean-based mattress for her baby's crib. Soybean-based mattresses allegedly provide a safer, more natural sleeping environment for young children. After a few months of use, the mother's baby developed a lung infection. The mother sued the mattress manufacturer under a products liability theory in federal court, and the jury's verdict awarded her $280,000 for the baby's medical bills and pain and suffering. Through a clerical error, the judgment entered reflected an award of only $250,000. After the manufacturer filed an appeal of the judgment and the appeal was docketed with the appellate court, the mother discovered the mistake. The mother filed a motion with the trial court to correct the judgment award. Can the trial court make the correction? (A) No, because such a correction can only be made with leave of the appellate court. (B) No, because the mother's attorney should have verified the judgment amount. (C) Yes, because a court may correct a clerical mistake on its own initiative. (D) Yes, because the mother filed a motion to correct the clerical mistake.

(A) No, because such a correction can only be made with leave of the appellate court. *Note:* Before an appeal is docketed in the appellate court, a district court can correct a mistake in a judgment, order, or other part of the record on its own initiative or pursuant to a party's motion. But after an appeal has been docketed, the district court can correct the mistake only with the appellate court's leave.

A patient sued a doctor in federal district court under diversity jurisdiction for injuries resulting from the doctor's alleged negligence in prescribing the wrong drug for the patient. Prior to trial, the judge granted the patient's motion for summary judgment, finding that the doctor was negligent. Unable to satisfy his judgment due to the doctor's bankruptcy, the patient brought a second suit for negligence in state court, this time against the clinic where the doctor worked as an independent contractor. Does the judge's finding of the doctor's negligence in the first suit preclude the clinic from litigating this issue in the second suit? (A) No, because the clinic was not a party to the first suit. (B) No, because the judgment in the first action was a summary judgment. (C) Yes, because the judge's negligence finding in the first suit was essential to the judgment. (D) Yes, because the patient is seeking the same relief based on negligence.

(A) No, because the clinic was not a party to the first suit.

Family members of a deceased individual properly filed an action for money damages in federal court against a funeral home for negligent infliction of emotional distress based on the alleged mishandling of the remains of the deceased. The funeral home timely and properly served an answer to the complaint. Thirty days later, including eight weekend days, the family members served a demand for a jury trial on the funeral home. The demand was served on a holiday. On the following day, a nonholiday weekday, the family members filed the jury trial demand with the court. Was the family members' demand for a jury trial timely? (A) No, because the demand was not served on the funeral home within 14 days of service of the answer. (B) No, because the demand was not filed with the court within 21 days of service of the answer. (C) Yes, because the demand was served on a holiday. (D) Yes, because weekend days are not counted in determining whether the demand was timely

(A) No, because the demand was not served on the funeral home within 14 days of service of the answer.

A bicyclist sued a motorist in federal court sitting in diversity jurisdiction for damages resulting from an accident. The complaint alleged that the accident was caused by the motorist's negligence and sought damages in a specific amount. In his answer, the motorist specifically denied allegations in the complaint that related to his liability but did not address the allegations relating to damages sought by the bicyclist. Consequently, the bicyclist contends that the motorist has conceded the issue of damages. Is the bicyclist correct? (A) No, because the failure to deny an allegation relating to the amount of damages does not deem that allegation admitted. (B) No, because in a tort action, the denial of allegations relating to liability is treated as a denial of allegations relating to damages. (C) Yes, because, as the defendant specifically denied allegations relating to liability, failure to deny the allegations relating to damages is treated as an admission. (D) Yes, because an allegation in the plaintiff's complaint is deemed admitted if not denied by the defendant.

(A) No, because the failure to deny an allegation relating to the amount of damages does not deem that allegation admitted.

In a civil action tried in federal district court, the judge determined that, due to the anticipated length of the trial, nine jurors were needed to ensure that six jurors remained when the case was sent to the jury for deliberation. The judge's determination was made in good faith and based on her experience as a judge dealing with juror requests for dismissal from a case. Consequently, nine individuals were selected as members of the jury. However, after each attorney had made his closing argument, all nine jurors remained. Without consulting either party, the judge, acting without discriminatory intent with regard to race or gender, excused the three jurors who had been selected last to reduce the jury to six jurors. Was this action proper? (A) No, because the judge did not excuse the three jurors for good cause. (B) No, because the judge failed to consult either party. (C) Yes, because a verdict may be returned by a jury with as few as six members. (D) Yes, because the judge acted without discriminatory intent with regard to the race or gender of the excused jurors.

(A) No, because the judge did not excuse the three jurors for good cause.

Under the Erie Doctrine, which of the following is NOT an example of state substantive law? (A) State discovery deadlines (B) State rules allocating burdens of proof on state claims (C) State rules governing choice of law (D) Statutes of limitations for state claims

(A) State discovery deadlines

Regarding complaints, which of the following is FALSE? (A) The plaintiff's recovery is generally limited to the claim for relief made in the complaint. (B) A complaint must include a demand for judgment for the relief sought. (C) A complaint must include a short and plain statement of the court's subject matter jurisdiction. (D) The federal rules require only notice pleading in most cases.

(A) The plaintiff's recovery is generally limited to the claim for relief made in the complaint.

Removal is the procedure by which a case brought in ________________ court is shifted to ___________________ court. (A) state; federal (B) state; another state (C) federal; state (D) federal; another federal court

(A) state; federal

A plaintiff filed an action against a defendant in federal district court. The complaint alleged that the defendant had infringed upon a trademark held by the plaintiff under federal law and sought $55,000 in damages. In addition, the plaintiff claimed damages of $10,000 allegedly attributable to the defendant's negligence in causing an auto accident involving the two parties. The plaintiff and the defendant are citizens of different states. The defendant moved to dismiss the negligence claim for lack of subject-matter jurisdiction. The court denied the motion. Was the court's ruling correct? (A) No, because a claim based on state law may not be joined with a claim over which the court has federal-question jurisdiction. (B) No, because neither diversity nor supplemental jurisdiction exists with respect to the negligence claim. (C) Yes, because the court can exercise supplemental jurisdiction over the negligence claim. (D) Yes, because the court has diversity jurisdiction over the negligence claim.

(B) No, because neither diversity nor supplemental jurisdiction exists with respect to the negligence claim.

A famous politician brought a federal diversity action against a newspaper for libel. The newspaper had printed an article describing the politician as "a crook who can be easily bribed." At trial, the politician's lawyer delivered her opening statement, followed by the opening statement of the newspaper's lawyer. The judge then adjourned the trial for the day. The newspaper's lawyer immediately filed a motion for judgment as a matter of law. The motion specified the judgment sought and detailed all of the facts behind the newspaper's statement in the article, as well as the law supporting judgment in its favor. Was the newspaper's motion proper? (A) No, because the newspaper had not presented its case to the jury. (B) No, because the politician had not been fully heard on any issue. (C) Yes, because the motion was made prior to the presentation of all evidence at trial. (D) Yes, because the motion was supported by the specific facts and law entitling the newspaper to the judgment.

(B) No, because the politician had not been fully heard on any issue.

Regarding oral depositions, which of the following is FALSE? (A) The deposition is given under oath. (B) The deposition is generally limited to one seven-hour day. (C) Any person sought to be deposed must be subpoenaed in order to compel attendance. (D) An entity selects the individual who will respond at the deposition on the entity's behalf.

(B) The deposition is generally limited to one seven-hour day.

A group of residents sought certification as a class in federal district court for a class action against a nursing home for damages resulting from substandard nursing care. The district court granted certification of the class, and the defendant nursing home timely and properly filed a petition for permission to appeal the certification with the appropriate court of appeals. If the court of appeals permits the nursing home's appeal, what is the effect on the district court proceedings? (A) The proceedings in the district court are automatically stayed pending the appeal. (B) The proceedings in the district court are stayed pending the appeal if the district court or the court of appeals so orders. (C) The proceedings in the district court can be stayed pending the appeal only by order of the district court. (D) The proceedings in the district court cannot be stayed pending the appeal.

(B) The proceedings in the district court are stayed pending the appeal if the district court or the court of appeals so orders.

An international shipping company was an industry leader in shipping textiles across international waters. During a long journey from a foreign country to the United States, a shipment of textiles caught fire and was destroyed. As a result, a small amount of oil from the cargo ship leaked into the ocean. The media learned of the small oil leak and covered the story extensively. The media particularly focused on the president of the shipping company and stated that he had a major disregard for the environment and cared only about profits. Consequently, the shipping company's reputation suffered, and its profits declined significantly. The president of the shipping company filed suit against some of the larger media outlets in federal court for defamation. The federal court should (A) presume that jurisdiction is valid until the media outlets show otherwise. (B) presume an absence of jurisdiction until the president demonstrates otherwise. (C) place the burden of establishing or refuting jurisdiction upon both parties. (D) address the issue of jurisdiction only if there is a question as to its validity.

(B) presume an absence of jurisdiction until the president demonstrates otherwise.

The plaintiff resides in a city in the Southern District of State C. The plaintiff credibly alleges that her federal legal rights were violated in a city in the Western District of State D by two defendants. The first defendant resides in a city in the Northern District of State C. The second defendant resides in a town in the Central District of State C, where the plaintiff's employer is located. In which districts would venue be proper as to all the parties? (A) The Western District of State D, the Northern District of State C, or the Southern District of State C. (B) The Western District of State D, the Central District of State C, or the Southern District of State C. (C) The Western District of State D, the Northern District of State C, or the Central District of State C. (D) The Western District of State D, the Northern District of State C, the Central District of State C, or the Southern District of State C.

(C) The Western District of State D, the Northern District of State C, or the Central District of State C.

A plaintiff, a citizen of State X, sued a defendant, a citizen of State Y, for negligence in federal district court in State X under diversity jurisdiction, in connection with an automobile accident that occurred in State Y. The defendant has had no contacts with State X. The plaintiff personally served the defendant with a summons and complaint at his home in State Y. The defendant's first response to the complaint was an answer that specifically denied the plaintiff's claims but omitted the defense of lack of personal jurisdiction. Fifteen days after serving the answer on the plaintiff, the defendant amended the answer to include the defense of lack of personal jurisdiction without asking leave of the court. Which of the following statements is most accurate regarding the defendant's actions? (A) The defense of lack of personal jurisdiction can never be waived and may always be asserted by a defendant. (B) The defense of lack of personal jurisdiction has been waived unless the court subsequently grants the defendant leave to amend his answer. (C) The defense of lack of personal jurisdiction was not waived and may be asserted by the defendant. (D) The defense of lack of personal jurisdiction was permanently waived when the defendant's answer failed to include it.

(C) The defense of lack of personal jurisdiction was not waived and may be asserted by the defendant.

Regarding the standards for appellate review, which of the following is TRUE? (A) The standard for setting aside judicial decisions regarding the law is "abuse of discretion." (B) In reviewing a jury verdict, the verdict must be affirmed by the appellate court unless it is supported by substantial evidence. (C) The standard for setting aside judicial findings of fact is "clearly erroneous." (D) The appellate court must abide by the conclusions of the district court on legal issues

(C) The standard for setting aside judicial findings of fact is "clearly erroneous."

A professional musician entered into a written contract with an instrument maker to craft a banjo. The contract was negotiated and executed in the state in which the musician resides. The banjo was made at a workshop located in another state across the country. The maker resides near his workshop in a third state. Each of the three states has a single federal judicial district. The musician traveled to the maker's workshop, where he picked up the banjo and paid for it. Subsequently, the musician discovered a defect in the banjo. The musician filed suit for breach of contract in the federal district court in the state where he resides. Is venue proper there? (A) No, because events and omissions giving rise to the breach-of-contract claim predominantly occurred in the state in which the workshop is located. (B) No, because substantial events and omissions giving rise to the breach-of-contract claim occurred in another state. (C) Yes, because a substantial part of the events or omissions on which the breach-of-contract claim is based occurred in the state. (D) Yes, because the musician resides in the state.

(C) Yes, because a substantial part of the events or omissions on which the breach-of-contract claim is based occurred in the state.

A plaintiff filed a breach-of-contract action based on diversity jurisdiction in federal district court. In her answer, the defendant alleged that she was not liable to the plaintiff due to a novation. The plaintiff did not reply to this allegation, and the court did not order the plaintiff to do so. How should the court treat the defendant's novation allegation? (A) As admitted by the plaintiff, because an allegation, other than one that relates to the amount of damages, is deemed admitted if not denied. (B) As admitted by the plaintiff, because the plaintiff did not respond to this allegation. (C) As denied by the plaintiff, because a party is not required to respond to an allegation contained in an opposing party's pleading. (D) As denied by the plaintiff, because the plaintiff was not required to respond to the defendant's pleading.

(D) As denied by the plaintiff, because the plaintiff was not required to respond to the defendant's pleading.

A mother bought reusable snack bags from a company. The company uses an antibacterial agent called triclosan in its reusable snack bags to help prevent mold from growing in the bags. Triclosan is a known toxin that may, if used in a sufficient amount, weaken the immune system, especially when used in a moist environment, such as with reusable snack bags containing fruit or other damp foods. The mother who purchased the snack bags sued the company in federal court because she believed that the toxins in the company's snack bags caused her son to contract an illness due to his weakened immune system. At a bench trial, the judge found that the amount of triclosan used by the company in its snack bags was sufficient to weaken a child's immune system and that the boy would not have suffered from this particular illness unless his immune system had been weakened. As a result, the judge entered a judgment in favor of the mother at the conclusion of trial. In an unrelated action also filed against the company in the same federal court, a father sought damages from the company on behalf of his daughter, who had contracted an illness after using the company's snack bags. During the trial, the father moved for partial summary judgment on the basis of collateral estoppel to prevent the company from contending that the amount of triclosan it used in its snack bags was insufficient to cause the weakening of a child's immune system. Should the court grant this motion? (A) No, because a jury did not render a final judgment on the merits. (B) No, because the daughter was not a party in the prior case. (C) Yes, because offensive use of collateral estoppel is permitted. (D) Yes, because the facts involved are related in time, space, origin, or motivation.

(C) Yes, because offensive use of collateral estoppel is permitted.

A company properly filed a diversity action in federal district court against an accountant for malpractice in preparing the company's financial statements. The accountant impleaded his malpractice insurer, asserting a claim for contribution against the insurer in the event that the accountant was liable to the company. The company then timely filed a third-party claim against the insurer for $90,000 in damages to the company vehicles caused by a falling tree. The insurer and the accountant are citizens of the same state, while the company is a citizen of a different state. The insurer has moved to dismiss this claim due to improper joinder. Should the court grant the insurer's motion? (A) No, because a plaintiff may file a third-party claim against a third-party defendant. (B) No, because the court has subject-matter jurisdiction over the company's claim against the insurer. (C) Yes, because the company's claim against the insurer does not arise out of the accountant's preparation of the company's financial statements. (D) Yes, because the court lacks jurisdiction over the claim asserted by the accountant against the insurer

(C) Yes, because the company's claim against the insurer does not arise out of the accountant's preparation of the company's financial statements.

A defendant filed a complaint against a third-party defendant for contribution permitted under federal law for any environmental damages for which the defendant may be found liable. The third-party defendant and the defendant were domiciled in the same state. The third-party defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted. The third-party defendant also submitted affidavits in support of its position, but the court refused to consider them. After taking all well-pleaded facts in the defendant's complaint as true and resolving all doubts and inferences in the defendant's favor, the court denied the motion to dismiss. Has the court acted properly in making its ruling? (A) No, because the court lacked subject-matter jurisdiction over the complaint against the third-party defendant. (B) No, because the court failed to consider the third-party defendant's affidavits. (C) Yes, because the court took all well-pleaded facts in the complaint as true and resolved all doubts and inferences in the defendant's favor. (D) Yes, because a third-party defendant cannot file a motion to dismiss for failure to state a claim upon which relief can be granted.

(C) Yes, because the court took all well-pleaded facts in the complaint as true and resolved all doubts and inferences in the defendant's favor.

A class action was properly brought in federal district court based on diversity jurisdiction. The defendant timely filed a jury trial demand. Because the trial was expected to be lengthy, the defendant requested that the judge impanel a jury of 11 individuals. The plaintiff objected to this request. By statute, the state in which the court is located limits the size of a civil jury to six members and two alternates. Should the court grant the defendant's request? (A) No, because the court's jurisdiction is based on diversity. (B) No, because the number of jurors would exceed the maximum number permitted under state law. (C) Yes, because the number of jurors was within the requisite range. (D) Yes, because the request was made by the party who demanded a jury trial.

(C) Yes, because the number of jurors was within the requisite range.

Regarding an answer, which of the following is TRUE? (A) An answer generally must be filed within one week of service of the complaint. (B) A failure to respond to an allegation in the complaint is treated as a denial. (C) A counterclaim must be separately pleaded; it cannot be contained in the answer. (D) Affirmative defenses must be pleaded in the answer

(D) Affirmative defenses must be pleaded in the answer

Police may re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel if there has been a _______ or more break in custody

14 day

Two business partners, who were citizens of neighboring states, entered into an agreement in which one partner would pay 70% of the initial start-up costs of a new solar energy business, while the other would pay 30% up front and repay 20% to the other partner after two years. The parties signed a promissory note outlining this agreement. After the two-year term outlined in the agreement had passed, the debtor-partner had not paid anything to the creditor-partner, so the creditor-partner appropriately filed suit in federal district court based on diversity jurisdiction. The forum state's partnership statute contains substantive and procedural provisions that vary somewhat from a federal statute that regulates certain lending in the solar energy industry, though the existence of an actual conflict between the statutes is dependent upon the facts of the matter. How should the court proceed? (A) Apply federal law, because there is a conflict regarding how the matter is handled. (B) Apply federal law, because there is a federal law that addresses the disputed issue. (C) Apply the law of the forum state regardless of whether there is a federal law that addresses the disputed issue. (D) Evaluate the facts to determine whether a conflict between the statutes exists.

(D) Evaluate the facts to determine whether a conflict between the statutes exists.

A plaintiff has brought a breach-of-contract action against a rancher in federal court under diversity jurisdiction. Before the initial planning conference occurred, the plaintiff subpoenaed the rancher's neighbor, a farmer, for an oral deposition. The rancher has moved to quash the subpoena. How should the court rule on this motion? (A) For the plaintiff, because the farmer, as a nonparty, was properly served with a subpoena to compel attendance. (B) For the plaintiff, because the plaintiff has not exceeded her 10-deposition limit. (C) For the rancher, because the farmer is not a party to the case. (D) For the rancher, because the plaintiff sought to depose the farmer before the initial planning conference.

(D) For the rancher, because the plaintiff sought to depose the farmer before the initial planning conference.

Which of the following is FALSE regarding an attorney's responsibility with respect to documents such as pleadings filed with the court? (A) An attorney must sign the documents. (B) By signing, the attorney certifies that, among other things, the document is not being presented for an improper purpose. (C) An attorney may be sanctioned for a false certification. (D) Most pleadings and motions need not be certified.

(D) Most pleadings and motions need not be certified. *Note:* Most pleadings and motions need not be VERIFIED

The plaintiff, the maker of an electronic device, filed a declaratory judgment action in federal district court against the defendant, the maker of a similar electronic device. The plaintiff sought a judgment that his device did not infringe on the defendant's patent. The court's subject matter jurisdiction was based on a federal question.The plaintiff was a citizen of the state in which the federal district court was located. The defendant, who was a citizen of a neighboring state, lived less than 100 miles from the forum court. Despite the defendant's proximity to the forum court, the defendant was not subject to service of process in her home state for this action under the laws of the forum state. A process server employed by the plaintiff personally served the complaint and summons on the defendant in her home state. Federal patent law does not contain special service of process provisions. Does this service of process confer personal jurisdiction over the defendant on the federal district court? (A) Yes, because the court's subject matter jurisdiction is based on a federal question. (B) Yes, because the "bulge provision" of Rule 4 of the Federal Rules of Civil Procedure applies. (C) No, because this is a declaratory judgment action. (D) No, because the defendant was not subject to service of process under the laws of the state in which the court is located.

(D) No, because the defendant was not subject to service of process under the laws of the state in which the court is located.

Under the Erie Doctrine, a federal district court generally must apply which law in a diversity action? (A) Federal procedural and federal substantive law (B) State procedural and state substantive law (C) Federal procedural and state substantive law (D) State procedural and federal substantive law

(D) State procedural and federal substantive law

A plaintiff filed suit against a defendant in federal district court. The court had diversity jurisdiction over the action, which was based on state law, and personal jurisdiction over the parties. On February 14, the defendant, alleging that the plaintiff had failed to prosecute the matter, moved to dismiss the entire complaint and the trial judge granted the motion. The judgment was entered on February 25. The plaintiff filed a notice of appeal with the district clerk on April 13. Which of the following is most accurate regarding the plaintiff's appeal? (A) The appeal is precluded by the final judgment rule. (B) The appeal may be permitted according to the discretion of the court of appeals. (C) The appeal is precluded because the claim was based on state law. (D) The appeal was not timely filed.

(D) The appeal was not timely filed. *Note:* must be filed within 30 days

In a negligence action properly before a federal district court sitting in diversity, the court submitted the case to the jury. The jury's decision, which took the form of a written special verdict, was read aloud by the court clerk in open court. The verdict stated that both parties were negligent and that both parties' negligence proximately caused the plaintiff's injuries. The verdict also stated that the plaintiff had suffered damages of $1 million and was 10% at fault for his injuries. The court then asked the jury collectively if this was their verdict and they responded in unison, "Yes." The defendant requested that the jury be polled. When questioned individually, a juror tearfully stated that the verdict was not her verdict because she did not believe that the defendant had been negligent. Upon further questioning, she maintained this position. The other seven jurors affirmed the verdict. The defendant moved for a new trial. Is the court likely to grant the defendant's motion? (A) No, because at least six jurors agreed with the verdict. (B) No, because a juror cannot recant a special verdict once it has been read aloud by the court clerk in open court. (C) Yes, because the court must order a new trial when polling the jury reveals that the verdict is not unanimous. (D) Yes, because one juror did not affirm the special verdict as hers.

(D) Yes, because one juror did not affirm the special verdict as hers. *Note:* If the poll reveals that the verdict is not unanimous, the court can either order a new trial OR direct the jury to deliberate further

A party cannot file a motion for sanctions until _________ after serving that motion on the alleged violator. This safe-harbor rule gives a violator time to correct the violation.

21 days

Under FRCP 15, an answer can be amended once as a matter of course within ________ days

21 days

A farmer filed an action in federal district court based on diversity jurisdiction seeking damages attributable to a malfunctioning irrigation system of which four different defendants had participated in the design, manufacture, and installation. The farmer advanced three alternative theories of liability against the defendants: breach of contract, breach of warranty, and negligence. Prior to trial, the court required the parties to submit requests for jury instructions. Each party submitted such instructions. Prior to the close of evidence, the court held a charge conference to discuss the form of the verdict and related jury instructions. Due to the number of defendants and variety of theories of liability against each, the court determined that a special-verdict form would be used. After the close of evidence, the defendants requested additional jury instructions because they were concerned that the special-verdict form failed to clearly indicate that, if the jury found for the farmer, the farmer was limited to a single recovery of his damages. Should the court permit the defendants' request for these instructions? (A) No, because a court may, but is not required to, permit a party to request specific jury instructions. (B) No, because the court had provided the defendants with the opportunity to submit jury-instruction requests. (C) Yes, because the conference was held before the close of evidence. (D) Yes, because the defendants could not reasonably have anticipated the need for such instructions prior to seeing the special-verdict form.

(D) Yes, because the defendants could not reasonably have anticipated the need for such instructions prior to seeing the special-verdict form.

A mayor sued a blogger for defamation in federal district court under diversity jurisdiction. The mayor alleged in her complaint that the blogger had published defamatory statements about her that suggested she was having an adulterous relationship. The mayor's entire case rested on her own testimony establishing the prima facie elements of her claim and a properly authenticated and admitted copy of the allegedly defamatory publication. At the end of the mayor's presentation of evidence to the jury, the blogger filed a motion for judgment as a matter of law. Finding that the mayor's meager evidence was insufficient for a jury to reasonably find that the publication was false, as was required by state law, the judge granted the blogger's motion and directed a judgment in favor of the blogger. The mayor immediately appealed the judgment, contending that the trial judge applied the wrong legal standard in granting the motion. On these facts, should the judgment be set aside on appeal? (A) No, because the district court's ruling was not clearly erroneous. (B) No, because the mayor failed to meet her burden of establishing a prima facie case as a matter of law. (C) Yes, because a motion for judgment as a matter of law cannot be granted until both parties have presented their cases. (D) Yes, because the district court improperly evaluated the weight of the evidence.

(D) Yes, because the district court improperly evaluated the weight of the evidence.

A patient filed a medical malpractice action against a physician in federal court based on diversity jurisdiction. At the close of the patient's case to the jury, the physician's attorney moved for a judgment as a matter of law that the patient had failed to establish the physician's negligence. The court denied this motion. The patient's attorney did not move for a judgment as a matter of law at that time. At the close of the physician's case to the jury, the patient's attorney moved for judgment as a matter of law that the physician's affirmative defense based on the expiration of the statute of limitations had not been established. The court determined that no reasonable jury could find that the statute of limitations had expired. Can the court grant the motion of the patient's attorney? (A) No, because a judgment as a matter of law cannot be rendered with regard to a defense. (B) No, because the patient's attorney did not move for a judgment as a matter of law at the close of the patient's case. (C) es, because a motion for a judgment as a matter of law can be made at any time before the jury renders a verdict. (D) Yes, because the motion made by the patient's attorney was timely and proper.

(D) Yes, because the motion made by the patient's attorney was timely and proper.

A property owner unsuccessfully pursued a declaratory judgment action against a neighbor for recognition of an express easement across the neighbor's property. The court, in its valid, final judgment, held that the easement had been lost since the neighbor had constructed and then maintained a fence cutting off the property owner's access to the easement for the statutory period for prescription of the easement. The following year, the property owner sold her property. Shortly thereafter, the neighbor died, and ownership of her property passed to her son. One month later, the buyer initiated a declaratory action against the neighbor's son for recognition of the same alleged express easement. Is claim preclusion a viable defense that the son can raise to this action? (A) No, because the buyer was not a party to the prior lawsuit. (B) No, because the son was not a party to the prior lawsuit. (C) Yes, because mutuality of parties is not required. (D) Yes, because the prior judgment was a valid, final judgment on the merits.

(D) Yes, because the prior judgment was a valid, final judgment on the merits. *Note:* he buyer and son are successors in interest and thus treated as parties to the prior lawsuit.

A woman received a facial rejuvenation treatment. During the treatment, the woman suffered severe damage to her skin due to her dermatologist's gross negligence. The woman filed a federal diversity suit in State A against the dermatologist. The woman lives in State B, but she had been visiting the treatment facility that the dermatologist operates in State A. The contract that the woman signed with the dermatologist permits the recovery of attorney's fees. The woman is seeking damages of $25,000 to recover for the cost of the treatment, $40,000 for pain and suffering, $10,000 for attorney's fees, and $100,000 in punitive damages. Does the woman's claim satisfy the amount-in-controversy requirement? (A) No, because the total amount in controversy is $25,000. (B) No, because the total amount in controversy is $65,000. (C) Yes, because the total amount in controversy is $75,000. (D) Yes, because the total amount in controversy is $175,000

(D) Yes, because the total amount in controversy is $175,000 *Note:* interests and costs NOT included BUT attorney's fees and punitive damages are

What are the three types of mandatory disclosures?

*Rule 26(a)* requires the parties to make: (1) Initial disclosures; (2) Disclosures of expert testimony 90 days before trial (3) Pretrial disclosures 30 days before trial.

Motion to dismiss for failure to state a claim - Rule 12(b)(6) motion

- A request that the court dismiss the suit because the nonmovant's complaint fails to assert a legally cognizable claim OR fails to allege facts that sufficiently support the claim. - The court's consideration of this motion is limited to the contents of the pleadings (including attached exhibits) and matters of public record. - The court also must: (A) treat all well-pleaded facts in the complaint as true, AND (B) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant.

The "bulge" provision of the federal rule, which provides for service of process on a party within 100 miles of the forum court even if state law would not otherwise permit such service, applies only to:

- A third-party defendant joined under Rule 14, OR - A required party joined under Rule 19

How does a party make a demand for a trial by jury?

- Any party may make a written demand for a trial by jury. - The demand, which may be made separately OR in a pleading, must be served *within 14 days* after service of the last pleading directed to the issue that is sought to be tried by a jury, and filed with the court within a reasonable time after service.

When MUST a clerk enter a party's default into record?

- Defendant failed to timely serve an answer - Plaintiff's claim is for a sum certain - Plaintiff's affidavit established amount due - Defendant failed to appear, AND - Defendant is not a minor or incompetent

Rule statements re: scope of discovery

- Discovery is generally permitted with regard to any non-privileged matter relevant to any party's claim or defense in the action. - Information within the scope of discovery need not be admissible in evidence to be discoverable. - The test is whether the information sought is relevant to any party's claim or defense.

In assessing whether a case can be filed in federal court, when is diversity determined?

- Diversity is determined at the time the case is filed. - There is no requirement that diversity exist at the time the cause of action arose. - A change in citizenship or amount in controversy after the filing of the case will not affect diversity jurisdiction that was in existence at the time of the filing. - A change in the parties as a result of substitution or intervention will not affect diversity jurisdiction.

How many peremptory challenges and challenges for cause does a party have?

- Each party in a civil case gets THREE peremptory challenges. - Each party is entitled to an unlimited number of challenges for cause.

Rule statements re: discovery of work product

- In general, a party may NOT discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. - BUT such materials will be subject to discovery IF the party shows that (1) it has substantial need for the materials to prepare its case and (2) cannot, without undue hardship, obtain their substantial equivalent by other means.

Rule re: removal when there are multiple defendants?

- In general, all defendants who have been properly joined and served are required to join in or consent to the removal. - IF the defendants are served at different times and a later-served defendant files a notice of removal, THEN any earlier-served defendant may join in the removal even though that defendant did not previously initiate or consent to removal. *Note:* In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal.

Under *Rule 15(a)*, a party may amend a pleading:

- Once as of right *within 21 days* if no responsive pleading is required; OR if a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served with a motion under Rule 12(b), whichever is earlier. - Additionally, the court should freely give leave to amend a pleading when justice so requires.

Under Rule 49(b), what must a judge do if a jury returns an inconsistent verdict?

- Order new trial - Direct jury to further consider its answers & verdict, OR - Disregard verdict & enter judgment consistent with answers

Under the Erie Doctrine, what law governs in a diversity action?

- Substantive law of the state in which the district court is located, IF there is no federal law on point. - Federal procedural law, EVEN IF a state rule or statute is in conflict.

An appellate court has discretion to permit an appeal from an order granting or denying class action certification if the petition for such an appeal is filed with the clerk of the appellate court within ______ days after the order is entered.

14

What is a collateral order?

A district court order that (1) conclusively resolves an important issue that is (2) separate from the merits of the claim and (3) effectively unreviewable on appeal from a final judgment.

What is a compulsory counterclaim?

A pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party IF: (1) The claim arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim; AND (2) The claim does NOT require adding another party over whom the court cannot acquire jurisdiction. *Note*: A party who fails to assert a compulsory counterclaim waives the right to sue on the claim AND is generally precluded from ever suing on the claim in federal court.

When must an objection to improper venue be raised?

An objection to improper venue must be raised in a pre-answer motion to dismiss under Rule 12(b)(3), OR in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed.

What is the due process requirement for in personam jurisdiction?

Due process requirements are satisfied if the nonresident defendant has sufficient *minimum contacts* with the forum state such that the maintenance of the action does not offend *traditional notions of fair play and substantial justice*.

Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of federal subject matter jurisdiction?

If multiple plaintiffs join together under Rule 20, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided the parties still meet the requirements of complete diversity.

When may a plaintiff join as a permissive joinder?

Pursuant to *Rule 20(a)(1)*, a person may join in one action as plaintiff if: (1) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; AND (2) Any question of law or fact common to all plaintiffs will arise in the action. *Note*: The same circumstances apply to permissive joinder of defendants under Rule 20.

When are sanctions authorized for spoliation

Sanctions are authorized for spoliation of evidence ONLY IF the information cannot be restored or replaced by additional discovery.

Forum non conveniens

The common-law doctrine of forum non conveniens allows a federal court to *dismiss or stay* a case—even when venue is proper in that court—if a state or foreign judicial system is better suited to hear the dispute *Note:* If you see a case being transferred for convenience of the parties, this is NOT under this doctrine.

How much time does a party have to respond to interrogatories?

The responding party must serve its answers and any objections *within 30 days* after being served with the interrogatories. *Note:* The court may order or the parties may stipulate to a shorter or longer time.

True or False: When the defendant is a non-resident of the US, venue is proper in ANY judicial district

True

True or False: Damages-related allegations CANNOT be admitted by the defendant's failure to deny them in an answer.

True

True or False: Additur is never allowed in federal court

True *Note:* A party may move for a new trial on the basis that the fact finder awarded an inadequate amount of damages. If a federal court rules that the amount was inadequate, it may order a new trial but may not impose an increase in the amount of damages (i.e., additur).

Which defenses are waived unless raised in the pre-answer motion or answer?

Under *Rule 12(h)(1)*, the follwoing defenses must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defenses will be waived: (1) lack of personal jurisdiction, (2) improper venue, (3) insufficient process, AND (4) insufficient service of process

Required elements for a complaint

Under *Rule 8(a)*, a complaint must include: (1) A short and plain statement of the grounds that establish the court's subject matter jurisdiction; (2) A short and plain statement of the claim establishing entitlement to relief; AND (3) A demand for judgment for the relief sought by the pleader.

What is federal question jurisdiction?

Under 28 U.S.C. 1331, the district courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the United States.

What is the "two dismissal" rule?

Under the two-dismissal rule, a voluntary dismissal is with prejudice when the plaintiff: (1) voluntarily dismissed an action in *federal or state* court without a court order, AND (2) filed a notice of voluntary dismissal in a second action on the same claim in *federal court.*

When are two claims considered related for purposes of supplemental jurisdiction?

When the claims arise out of a common nucleus of operative fact

How long does a defendant have to respond to a complaint under Rule 12?

Within 21 days of service of process, either by answer or pre-answer motion

When deciding a motion to dismiss for failure to state a claim, the court engages in a two-step inquiry: (1) identify allegations that are ____________________, and (2) ask whether remaining allegations make a ______________________ case for recovery.

conclusory; plausible