Civil Procedure MC
If the federal antidiscrimination claim alleges damages of only $50,000, where can the lawsuit be brought?
State and Federal
P(Mass) sues D (NY) in Vt. Fed. Ct. and alleges a state law claim and damages >75K? Subject matter jurisdiction?
Yes
What Rule governs the adequacy of a cross-claim?
Rule 8(a) because it is a claim for relief
A driver filed a diversity action against a mechanic in federal court in State A. The mechanic was served with a complaint and summons by a 23-year-old law student. The student is unknown to both the driver and the mechanic and is working during the summer to pay for tuition. Which of the following is true? A The mechanic's attorney must answer the complaint within 14 days and should not include an affirmative defense of insufficient service of process. B The mechanic's attorney should file a motion to dismiss for insufficient service of process. C The mechanic's attorney must answer the complaint within 21 days and should not include an affirmative defense of insufficient service of process. D. The mechanic's attorney must answer the complaint and include an affirmative defense of insufficient service of process.
A
Yee sues Paul for injuries he sustained in a car accident with Paul. Paul believes that Yee was negligent and caused his and Paul's injuries. Yee sues Protect Painting Co. for her injuries from an accident where he alleged that Protect Painting who was painting his business negligently placed a ladder. Protect counterclaims for the contract price of the paint job on her house. Is Protect's counterclaim compulsory?
Yes, because they arise out of the same T/O.
A man from State A sues two mortgage brokers, who are citizens of State A, in federal district court in State A. The man's complaint alleges that the brokers failed to make disclosures that are required by an applicable federal lending law. The first broker then files an answer and a cross-claim against the second broker. The cross-claim alleges that the second broker underpaid him in violation of the federal labor laws. The first broker is seeking $150,000 in damages. The second broker files a motion to dismiss. Will the court grant the motion to dismiss? A No, because cross-claims are permissive. B No, because the court has jurisdiction over the cross-claim. C Yes, because the cross-claim does not arise out of the same transaction or occurrence that is the subject matter of the original action. D No, because the cross-claim is filed under federal law.
B
In the same Sawyer Sewing Machine litigation as above, after Paul's attorney learns that Marta, another Sawyer customer, injured her hand loading thread into the Sawyer sewing machine, Paul's attorney interviews Marta. The interview was recorded. But shortly thereafter, Marta moves to Spain, out of the federal court's jurisdiction. During the discovery, Sawyer asks for all material, "including documents, electronic files and recordings that relate to the Plaintiff's claims." Which of the following statements is true? A. Paul violated Rule 26(a)(1) if he failed to disclose Marta's recorded interview in his initial disclosures. B. Paul need not disclose the recording, but should note its existence and describe it based on work product protection. C. Paul need not disclose the document or note its existence based on work product protection. D. Paul must disclose the recording in his initial disclosures because Marta is no longer available to be subpoenaed in the jurisdiction and Sawyer would suffer "undue hardship' in not having her testimony.
B
Same facts but Salem submits jailors' affidavits swearing that the brother showed no signs and said nothing suggesting that he might be a suicide risk. In which of the following situations should the court deny Salem's motion for summary judgment? A Slaven submits an affidavit in which she swears that "the officers knew or had reason to know that" her brother was suicidal. B Slaven submits an affidavit in which she swears that when she talked to her brother in his cell he told her that he wanted to commit suicide. C Slaven submits a memorandum of law citing case law declaring that, if the officers knew or had reason to know that her brother was suicidal, they had a duty to protect him from suicide. D Slaven submits an affidavit from Slimey Sam, a local bookie under arrest for extortion, in which he swears that he told the officers that he had heard the brother moaning in despair and threatening suicide.
B, D
Wong sues Cardell for libel, trespass to land on a different matter, and an unrelated breach of contract claim. She seeks money damages for the libel claim, an injunction (requiring him to stop entering his land) on the trespass claim, and money damages and specific performance on the contract claim. Is this proper?
Yes, but the court has the power order separate discovery tracks under Rule 21 and separate trials under Rule 42(b).
After the date for delivery had come and gone, a buyer sued the dealership that had promised to deliver to him, by June 1, 2013, a new car meeting certain specifications. The suit was filed in federal court. In its initial disclosures, the dealership timely provided to the buyer the name, address and phone number of the dealership manager and of persons who worked at the auto manufacturer who had information regarding the failed delivery. The dealership did not provide the name, address or phone number of other persons who worked at the dealership who knew of the dealership's delay in delivery because the dealership did not believe these individuals had additional discoverable information and the dealership did not intend on calling these individuals as witnesses should the case proceed to trial. The buyer failed to make a timely initial disclosure to the dealership. The buyer then moved for an order compelling further disclosures from the dealership, arguing that the dealership's initial disclosures were materially incomplete, and certifying that the buyer had, in good faith, made attempts to confer with the dealership to obtain further disclosures without court action. Should the court grant the buyer's motion to compel? A No. The dealership has no obligation to complete its initial disclosures until the buyer has made his own initial disclosures. B Yes. The buyer's failure to make his own disclosures is no excuse for the dealership's failure to make complete disclosure. C No. The dealership has no obligation to include in their initial disclosures information concerning individuals who have discoverable information but whom the dealership does not intend to use in support of its defenses. D Yes. The buyer's failure to make his own initial disclosures is no excuse for the dealership's failure to make complete disclosure. The dealership breached its initial obligations in failing to identify the other persons who worked at the dealership and who knew about the dealership's delay in delivering the car.
C
In the same Sawyer Sewing Machine litigation above, a couple of months earlier, the parties made their initial disclosures under Rule 26(a)(1). Within a few days, Paul's attorney learns through his informal discovery that another customer, Marta, sent a letter to Sawyer six months ago alleging that the thread loader on her Sawyer sewing machine had severely injured her hand. But Sawyer did not turn over this letter in the initial disclosers. Which of the following statements is true? A. Paul cannot obtain the letter because it is not subject to disclose under Rule 26(a). B. Paul should move to require supplemental disclosure under Rule 26(a)(1 and 26(e)(1). C. Paul should send Sawyer a request under Rule 34 for Production of Documents to obtain the letter. D. Paul should move for sanctions for Sawyer's failure to turn over the letter in its initial disclosures.
C
Michaels brings an action pro se (without counsel) against Advance Computer Software (ACS), alleging that its software "harmed my financial interests." ACS produces currently twelve different types of software. ACS, unable to discern the legal basis of the claim, moves for a more definite statement under 12(e). The judge grants the motion, and Michaels files a clearer amended complaint that identifies the type of ACS software and alleges that ACS has infringed on Michaels' patent. ACS responds to the complaint by filing a motion to dismiss under Rule 12(g)(3) for improper venue, siting law that places venue for patent cases in a different district court. Which of the following is true? A. ACS's objection is waived under 12(g)(2) because it was omitted from its first pre-answer motion. B. ACS's venue objection is not waived under Rule 12(h)(1)(A) but ACS cannot make a second pre-answer motion based on it. C. ACS's venue objection is not barred by Rule 12(g)(2), and it can make a motion based on it. D. ACS's venue objection is waived because it cannot be waived by pre-answer motion.
C
A patient, a citizen of State A, brought suit against a physician, a citizen of State B, in a federal court in State B. The patient sought $125,000 as compensation for medical malpractice. The only allegation concerning the physician's misconduct in the patient's complaint is that the physician "practiced medicine negligently." The patient's complaint contains no further explanation of the physician's alleged negligence. Which of the following is true? A The patient's complaint probably satisfies federal pleading requirements, though the allegations alone would not be sufficient to survive a motion for summary judgment. B The patient's complaint probably does not satisfy federal pleading requirements, and is vulnerable to an immediate motion for summary judgment. C The adequacy of the patient's complaint would be determined by state pleading requirements, not federal pleading requirements, since this is a diversity lawsuit. D The patient's complaint probably does not satisfy federal pleading requirements, and is vulnerable to an immediate motion to dismiss.
D
A teacher, a citizen of State A, properly brings an action against a student, a citizen of State B, for slander in State A federal district court. The student was not responsible for the slander and knows that the slanderous statement was actually made by a friend. What should the student do in response to the teacher's complaint? A Implead the friend. B Warn the friend of the impending lawsuit. C File a motion to dismiss for failure to state a claim upon which relief can be granted. D File an answer denying the allegation.
D
Dajani sues Moylan in Federal Court on breach of contract. Moylan moves to dismiss for failure to state a claim under Rule 12(b)(6). The court denies the motion. Moylan then files an answer to the complaint, which includes the defense that venue is improper and that Dajani can him a release of this claim in a prior settlement. A Moylan has waived both defenses by failing to include the in her pre-answer motion. B Moylan may include these defenses in her answer. C Moylan may assert the release in her answer and may include the venue defense in her answer because Rule 12(b)(6) objection cannot be waived. D Moylan may include the release defense in her answer but has waived her objection to venue.
D
Levine and Schwartz have done business together for over a year, manufacturing components for mobile phones. Levine brings a suit in Federal Court against Schwartz for "tortious interference with a proper business practice." Schwartz, pre-answer, moves to dismiss for lack of personal jurisdiction, which the court denies. Before answering, Schwartz files a motion to dismiss for failure to state a claim. Which answer is the most correct? A. The motion is improper because Schwartz cannot make a second pre-answer motion under Rule 12 to assert a defense that was available when he filed the first motion. B. The motion is improper because Schwartz's failure to assert his Rule 12(b)(6) motion in his first pre-answer motion waives the objection. C. The motion is proper because the objection is not waived by making a motion on other Rule 12 grounds first, and can be raised at any time. D. The motion is proper because the motion to dismiss under Rule 12(b)(6) is not waivable.
D
Are cross-claims compulsory?
No, crossclaims are not compulsory because the party is not compulsory, merely permissive.
You represent Toxico, a company accused of illegally dumping toxic chemicals into the Rio River, causing health problems for people who live nearby. In discovery, the plaintiffs (homeowners in the area) ask for "all documents relating to Toxico's discharge of any toxic substance into the Rio River in the last five years." Toxico shares with you an email from three years ago. It is from a Toxico executive to a chemical waste company, authorizing the discharge of Chemostat, a toxic chemical, into the Rio River. Which of the following statements is most accurate? A. The email is not discoverable, because it is not a "document." B. The email is not discoverable, because it will not be used to support Toxico's "claim or defense." C. The email is not discoverable because the document request is overly broad and vague. D. The email is not discoverable because it would adversely affect Toxico's case; Toxico has no duty to help an adversary. E. The email is discoverable and must be disclosed.
D
Must a Plaintiff join all potential Defendants in one lawsuit under Rule 20?
No-the rule says "may." But remember that there are practical limitations in failing to sue potential defendants under claim and issue preclusion.
A small corporation with 100 employees has a rented office space in northern Massachusetts, where several employees conduct all of the company's work and where the four officers of the company occasionally meet. The four officers live in New Hampshire and usually meet there in each other's homes to discuss business matters and to make executive decisions about the corporation. The corporations has a small board of directors, too, that meet with corporate officers twice a year in the Massachusetts offices. Where is its principal place of business under Hertz?
New Hampshire
P (Mass) and P2 (Ct) sue D1(Vt) and D2(Ct) in Vt. Fed. Ct. and allege a state law cause of action and damages >75K. Subject matter jurisdiction?
No
P (Mass) sues D1 (Vt) in Vt. Fed. Ct. and alleges a state law cause of action and damages of 50K. Subject matter jurisdiction?
No
P (Mass) sues D1(Vt) in Vt. Fed. Ct. and alleges a state law cause of action and damages of 75K exactly. Subject matter jurisdiction?
No
Plaintiff (Mass) sues Defendant 1 (Vermont) and Defendant 2 (Mass) in Vermont federal court and alleges a state law cause of action and damages >75K. Subject matter jurisdiction?
No
Painter asks you to file a complaint against Toyota seeking damages for severe personal injuries he suffered when his Toyota suddenly accelerated into a parked car. He doesn't know exactly what the defect is. Assuming that you have identified a proper federal court, can you now file a complaint on his behalf with the in information you have? If not, what must you do first? Why?
No. Before filing the complaint on his behalf one must do an informal discovery into the claim in order to gather evidence to substantiate that the result of the acceleration was due to the sudden acceleration more so than anything else that can be argued in order to lead plausibility to the claim so that it will survive a motion 12(b)(6).
What is the Rule 12 Trap?
Rule 12(h) The Waiver Trap in which a party waives any defenses listed in Rules 12(b)(2)-(5) if not combined with other 12(b) motions previously made. Rule 12(g) allows you to combine your 12(b) motions into a single motion. But if party motions for one of 12(b)(2)-(5) motions, then they must be consolidated via 12(g), or they are waived.
Plaintiff wants to file a federal anti-discrimination claim and has damages exceeding $75,000. Where can this claim be brought?
State and Federal
What if the plaintiff wants to bring a federal antidiscrimination claim, and she is a Massachusetts citizen and the defendant is a Massachusetts citizen? Which courts have subject matter jurisdiction?
State and Federal
Ortega retired from his job in Louisiana. He wanted to live on a boat, and moved to Texas to do so, but kept his apartment in Louisiana, where he intended to retreat during hurricane season. He lives on his boat for one week, but then his boat sank, allegedly due to misrepresentations by the seller about whether it would withstand rough weather. He is not registered to vote in Texas and still has his Louisiana driver's license. He raised the boat, but returned to his Louisiana apartment, with a plan to recover damages from the seller to repair the boat and resume his "lifelong fantasy" of living on the boat. Where is he domiciled?
Texas
What is the test for allowing impleader?
Who is liable to the defendant as a result of plaintiffs claims. Usually involve claims for indemnity (insurance) or contribution (for torts or contractually).
P (Mass) sues D (NY) in Mass. state court and alleges a state law cause of action and damages of 50K. Subject matter jurisdiction?
Yes
P (Mass) sues D1(Maine) and D2(Maine) in Maine Fed. Ct. and alleges a state law cause of action and damages >75K. Subject matter jurisdiction?
Yes
Sawyer Sewing Machines supplies "smart" sewing machines throughout the world. The machines are easy to thread, and the advertising claim is that the clothes "practically sew themselves!" Sawyer recently received a letter from a New Jersey resident, Paul, that he badly injured his finger while threading the machine. Suspecting that a lawsuit might be filed, the CEO asked its chief engineer, Steve, to review all relevant records and compile a report of all similar claims and relevant material to see if there was anything to the allegation that there might be a problem with the sewing machine's thread loader, which we he did do. Six months later, Paul properly filed a lawsuit for products liability in Federal Court against Sawyer for damages to his finger allegedly caused by the Sawyer Sewing Machine. During discovery, Paul ask Sawyer to produce "all documents related problems or claims in the threading of the sewing machine within the las five years." Which of the following statements is true? a. Steve's report is not protected under the work product doctrine because it was created before Paul filed the lawsuit. b. Steve's report is protected under the work product doctrine, unless Paul makes a showing that he has a substantial need and an inability to obtain the equivalent information through other means. c. Steve's report is not protected by the work product doctrine because it was not prepared by a lawyer. D. Steve's report is not protected by the work product doctrine because it was requested by the CEO and not Sawyer's lawyer. E. Steve's report is not subject to discovery under Rule 26(b)(1) because it pertains to other customers and not to Paul.
b
