MBE Civil Procedure

A corporation has been the subject of several news reports charging that the pollution put out by its factory endangers 5,000 residents of a subdivision. The corporation filed an action naming all 5,000 residents as defendants and seeking a declaratory judgment that it is not liable for damaging their health, and the court properly certified the action as a class action. Per court order, detailed notice of the suit is posted on every lightpole throughout the subdivision, but the residents are not notified individually. Was notice in this case constitutional?

No, because all residents could reasonably be notified by mail. Even if authorized by statute, due process requirements would not be met. Notice here was not constitutional. Due process requires that the method of giving notice must have a reasonable prospect of giving actual notice. Posting of notice is insufficient to notify persons whose names and addresses are known. These persons must be notified at least by ordinary mail.

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

The complaint is filed with the court

In federal court, and without a court order, which of the following is an authorized way to serve process on an individual?

Following the state rules for service of process

A law firm entered into a contract with an office furniture supplier to purchase a substantial amount of office furniture. The contract provided that the supplier would deliver and install the furniture within 30 days. Six months passed and the furniture had not been delivered, and the supplier informed the law firm that the furniture would not be available for at least another month. The law firm then filed a breach of contract action against the supplier in federal district court. The action sought recovery of lost revenues and profits that the law firm alleged were caused by the supplier's failure to deliver the furniture as agreed. The law firm properly served process on the supplier, but the supplier failed to file an answer or otherwise respond to the complaint. After several months passed, the law firm filed a motion requesting that the clerk of court make an entry of default, and the clerk did so. What procedure must the law firm follow to obtain a default judgment against the supplier?

File a motion to have the judge enter the default judgment, which the judge may do without the supplier receiving any further notice of the motion for default judgment. The law firm may file a motion with the judge. A default judgment may be entered by the clerk only if it is for a sum certain. Otherwise, a judge must hear and determine damages.

The plaintiff corporation is incorporated in State A and has its principal place of business in State B. The defendant corporation is incorporated and has its principal place of business in State C. It also has branch offices and does substantial business in all 50 states. The cause of action is based on a breach of contract that was to be performed in State D, which has a long arm statute authorizing jurisdiction in such cases. In which of these states may the plaintiff corporation bring its action?

In States C or D only, because only those two states have personal jurisdiction and proper venue.

A car collector bought a car with gold leaf paint from a manufacturer. During the first month, all the gold leaf paint peeled off. The collector sued the manufacturer, and during discovery served an interrogatory asking the manufacturer to identify all other purchasers of the gold leaf paint over the previous 10 years. The manufacturer was aware that only about 25 of the 2 million buyers of its cars have ordered the gold leaf option. The manufacturer has retained copies of all sales forms, but has not maintained separate files of the buyers of each particular option. In a court using the federal rules, what are the manufacturer's obligations with respect to the collector's interrogatory?

It may allow the collector to search the records himself. Assuming the interrogatory is otherwise proper, the manufacturer may search the 2 million order forms itself or it may allow the collector access to the files. In a situation where desired information may be ascertained from the business records of the party on whom the interrogatory was served, and where the burden of finding the information is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to provide the serving party reasonable opportunity to examine the records.

Select the option that best completes the sentence describing the scope of discovery under the Federal Rules. Parties may obtain discovery of any _______ matter that is relevant to any party's claim or defense and proportional to the needs of the case.

Nonprivileged

When he turned 21, a young man who lived in State A decided to move to a city in State B. He loaded all his possessions in his truck and trailer and set out for State B. While en route, he was involved in a serious accident in State C with a woman driving an SUV, injuring both parties. Because of his injuries, the man has remained in State C for several months. However, he still intends to relocate to the city in State B as soon as he has recuperated and is able to travel. The woman, a citizen and resident of State D, is preparing to file a negligence action in federal district court against the man for the injuries she suffered in the State C accident. If the woman files the action before the man proceeds to State B, in what federal district or districts is venue proper?

The District of State C and the District of State A.

A woman filed a complaint in federal court against a man for both battery and negligence for running over her with his golf cart. After the woman properly served the complaint on the man, he filed an answer denying all allegations of negligence, but did not reply at all to the battery claim. The woman would like to file a motion to secure judgment in her favor on the battery claim. What type of motion should the woman's lawyer file to try to obtain judgment on the battery claim?

A motion for judgment on the pleadings for failure to state a legal defense to the battery claim. The woman's lawyer should file a motion for judgment on the pleadings. Once pleadings are complete, any party may move for judgment on the pleadings. [Fed. R. Civ. P. 12(c)] A motion for judgment on the pleadings may be filed only after all pleadings are complete, but early enough so as not to delay the trial. In reviewing the motion, the court accepts all facts alleged in all the pleadings as true, and a failure to deny allegations in the complaint constitutes an admission. If the court concludes a party is entitled to judgment as a matter of law, it will grant the motion and render judgment. Failure to state a legal defense to a claim is one listed reason for a motion for judgment on the pleadings. [Fed. R. Civ. P. 12(h)(2)] Here, since the man never replied to the battery assertions, they are deemed admissions. Therefore, the proper motion for the woman's attorney to file is a motion for judgment on the pleadings. Note that the court may allow the man to amend his answer if the failure to defend was an oversight, but that is not what the question asked.

For venue purposes, a business entity defendant is deemed to reside in:

Any judicial district in which the defendant is subject to the court's PJ with respect to the action in question.

A farmer brought a federal diversity action against a feed distributor, alleging that the feed deliveries sent by the distributor were less than the agreed-upon amount bargained and paid for. Following discovery, the farmer filed a motion for partial summary judgment, seeking a ruling solely on the issue that the contract had been breached. In support of the motion, the only evidence the farmer cited was the distributor's discovery responses, and noted that no evidence was presented to establish that the distributor complied with the contract. The distributor filed a response denying breach of contract, but did not provide any evidence in support of his response. If no other evidence is offered by either party, how should the court rule on the motion?

Deny the motion, because the farmer failed to carry his initial burden of establishing a prima facie case for summary judgment. The court should deny the motion. Summary judgment may be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. [Fed. R. Civ. P. 56] For the plaintiff to prevail on a summary judgment motion, he must satisfy the burden of production on every element of its claim. If neither party offers any evidence on an issue, the party with the burden of production loses. Here, the moving party is the farmer, who moved for partial summary judgment on the issue of breach. As such, it is the farmer's burden to present substantial evidence of breach (lack of compliance), not the defendant-distributor's burden to present evidence to prove compliance. Therefore, the farmer failed to meet the prima facie standard for summary judgment.

The plaintiff is a resident of City A, located in the Northern District of State A. The defendant is a resident of City B, located in the Eastern District of State B. The defendant negligently ran a red light in City B, resulting in a collision between his car and the delivery van that the plaintiff was driving. The result: 100 pounds of cork that the plaintiff was delivering wound up striking him in the back of the head, causing severe injuries. The plaintiff sued the defendant in the Northern District of State A. The defendant moves to dismiss based on improper venue. How should the court rule on the defendant's motion to dismiss?

Deny the motion, but it should transfer the case to the Eastern District of State B. Venue in this case (a diversity case) would be proper in a judicial district in which (i) any defendant resides, if all reside in the same state or (ii) a substantial part of the events or omissions giving rise to the claim occurred. Thus, venue would be proper in the Eastern District of State B because that venue is both the defendant's residence and the place where a substantial part of the events took place. The plaintiff's choice of venue in the Northern District of State A must be corrected. To correct improper venue, a court will usually transfer the case to a place of proper venue, not dismiss the case, with the standard being whether transfer would be in the interests of justice. There are no facts here to indicate that an injustice would be worked by transferring the case; as a result, the case should be transferred rather than dismissed.

When a plaintiff has both federal and state-based claims against a defendant and diversity jurisdiction does not exist, the federal court has:

Discretion to exercise supplemental (pendent) jurisdiction over the state law claim if the two claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding

A citizen of State A purchased life insurance by mail from a State B insurance company. The policy was the only one that the company had ever sold in State A. The purchaser mailed premiums from State A to State B for five years, and then died. The insurance company refused to pay the policy benefits. The purchaser's administrator sued the company in State A state court. The state has a long arm statute that grants a state court in personam jurisdiction over a defendant who "contract[s] to insure any person, property, or risk located within this State at the time of the contracting." The insurance company argued that its only contact with State A since it began its business was the purchaser's insurance policy, and that this single contact does not meet the minimum required for the exercise of in personam jurisdiction under International Shoe. How should the court rule on the minimum contacts issue?

For the purchaser's administrator, because of the close connection between the contact and the case. The court should rule for the purchaser's administrator on the minimum contacts issue and exercise in personam jurisdiction over the insurance company. Generally, fewer contacts will suffice for in personam jurisdiction if those contacts are directly related to the cause of action. Here, even though the sale of the insurance policy constituted only a single contact, it is the contact at issue in the case. Thus, the exercise of jurisdiction would be constitutional.

A citizen of State A filed a complaint alleging negligence by two parties, a citizen of State B who lives in the District of State B, and a citizen of State C who lives in the District of State C. The complaint was filed in the United States District Court of State A. However, the accident took place in State D, the plaintiff was treated by an emergency room physician in State D, and all of the witnesses reside in State D. Neither defendant has ever been to State A. Two months after they filed their respective answers, which did not address any problems with personal jurisdiction or venue, the defendants filed a joint motion to dismiss the case for lack of personal jurisdiction, or, in the alternative, to transfer the case to the District of State D. How should the court rule?

Grant the motion in part and transfer the case to the District of State D in the interests of justice. The court should grant the motion in part. Pursuant to Rule 12(b), lack of personal jurisdiction, as well as improper venue, must be raised in a defendant's first response—either in its timely motion to dismiss before the answer or in the answer, whichever is first. Here, the defendants have already filed an answer without objecting to either of these, so the court should decline to dismiss on that ground.

A manufacturer of widgets is incorporated in State A, although it has no operations, activities, employees, or offices in State A. Its principal place of business and all of its manufacturing operations are in State B. The manufacturer sells its widgets exclusively through its own stores, and it operates stores in only State B and State C. A consumer who resides in State D visited one of the manufacturer's State C stores and purchased a widget. The consumer returned to his home to State D, where he was injured while using the widget. The consumer filed a products liability action against the manufacturer in the United States District Court for State A. The manufacturer filed a motion to dismiss the action, or in the alternative to transfer the action to the United States District Court for the District of State C, for improper venue. How should the court rule?

Grant the motion to transfer the action to the District of State C. The court should grant the motion to transfer the action to the District of State C. Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. A corporate defendant is deemed to reside in each district with which it has sufficient contacts to justify personal jurisdiction with respect to the action. Thus, State A is a proper venue because, by virtue of it being incorporated there, the manufacturer is subject to general jurisdiction (jurisdiction over all causes of action) there. State C would be more convenient for the parties and witnesses because the defendant's operations are there and relevant witnesses may be there, and State C is a proper venue because the defendant manufacturer purposefully transacted business there (the sale at one of its stores), which gave rise to the action, thus subjecting the manufacturer to specific jurisdiction in State C. In the instant case, no witnesses, parties, or evidence are in State A. Thus, on the whole, the case should be transferred to State C.

An electrician from State A was hired by a commercial builder from State B to install all the electricity in a new strip mall located in State A. Upon completion, the builder refused to pay the electrician, claiming the installation was not up to the building code. The electrician filed a diversity action in federal court sitting in State A against the builder for breach of contract. Although the action was filed within the applicable statute of limitations period, the electrician failed to serve the summons and complaint on the builder until after the statute of limitations on the claim expired. Under the law in State A, an action is "commenced" for purposes of the state's statute of limitations when the defendant is served with the summons and complaint. However, under the Federal Rules of Civil Procedure, an action is "commenced" in federal court when the plaintiff files the complaint in federal court. The builder filed a motion to dismiss the complaint for exceeding the statute of limitations period, arguing the state law governs. How should the court rule?

Grant the motion, because statutes of limitations and rules for tolling statutes of limitations are considered substantive rules, and therefore the state law will apply. The court should grant the motion. Under the Erie doctrine, when a state law-based claim is brought in federal court based on diversity of citizenship, the federal court generally applies the substantive law of the state in which it is sitting. However, where a specific federal statute or the Federal Rules of Civil Procedure apply, the federal court must apply federal procedural law as long as the federal rule is rationally deemed to be procedural and does not abridge, enlarge, or modify any substantive rights. However, if there is no federal statute or rule on point, the federal judge must determine whether the law on that issue is substantive or procedural. If it is a matter of substance, the federal judge must follow state law in a diversity case. If it is a matter of procedure, the federal judge may ignore state law. The Supreme Court has established that statutes of limitations and rules for tolling statutes of limitations are substantive for Erie purposes; therefore, a federal judge in a diversity case must follow state law on those issues. [Guaranty Trust Co. v. York, 326 U.S. 99 (1945)] As a result, the State A law (including its choice of law principles) will govern the statute of limitations. Since the law considers an action as "commenced" for the purpose of the state's statute of limitations when the defendant is served with the summons and complaint, the statute of limitations has expired and the builder's motion to dismiss should be granted. (B) is wrong because it not only applies the wrong law to the facts, it also incorrectly blends two distinct tests together. In cases where there is no federal directive on point and where it is difficult to determine whether an issue is substantive or procedural for Erie purposes, the Supreme Court has given different tests at different times, but has failed to integrate the tests comprehensively. One such test is outcome determination, which holds that an issue is substantive if it substantially affects the outcome of the case. [Guaranty Trust Co. v. York, supra] Another test is forum shopping deterrence, which directs that the federal judge should follow state law on the issue if failing to do so would cause litigants to flock to federal court. [Hanna v. Plumer, 380 U.S. 460 (1965)] Neither of these tests apply to the question because, as stated above, the Supreme Court has established that statutes of limitations and rules for tolling statutes of limitations are substantive for Erie purposes.

A movie director sued an actor in federal court in the District of State A, alleging breach of a contract to star in a movie. Both parties are domiciled in State B, the contract was made there, and the movie was to be made there. Nonetheless, the director prefers to sue in federal court in State A where he is working. The actor is also currently working in State A on another project and does not object to the federal court in State A hearing the case. May the United States District Court for the District of State A hear the case?

No, because the court lacks subject matter jurisdiction. This question highlights the difference between venue and subject matter jurisdiction. Subject matter jurisdiction cannot be conferred on the court by a failure of the parties to raise the issue. In fact, if the court determines on its own that it lacks subject matter jurisdiction, it must dismiss the action even if the parties have not raised the issue. Venue, on the other hand, may be waived by the parties. In the instant case, federal subject matter jurisdiction is lacking because the claim does not arise under federal law and because the claim is between two citizens of the same state (State B). As a result, the court may not hear the claim.

A citizen of State A sued a police officer in federal district court pursuant to 28 U.S.C. §1983, alleging violation of her civil rights. The citizen sought to join a defamation claim against the police officer's wife arising from a public altercation in which the two were involved. The claim against the police officer seeks $100,000 in damages, and the claim against the officer's wife seeks $85,000 in damages. All three parties are citizens and residents of State A. The operative facts applicable to the two claims are unrelated. The police officer and his wife filed a motion to dismiss the action both for lack of subject matter jurisdiction and improper joinder of parties. How should the court rule?

Grant the motion, because the claims do not arise from the same transaction or occurrence, so joinder is improper, and the court lacks subject matter jurisdiction over the claim against the police officer's wife. The court should grant the motion to dismiss the defamation action both for lack of subject matter jurisdiction and improper joinder of parties. Parties may be joined as defendants whenever: (i) some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and (ii) there is a question of fact or law common to all the parties. Here, the claims against the police officer and his wife are not related and do not arise out of the same occurrence or transaction, and there is no common question of fact or law involved in the claims. Therefore, joinder is improper. Even if joinder were proper, the court would still need subject matter jurisdiction over both claims

Absent a showing of substantial need and undue hardship, the "work product" (a document or tangible thing) made by a party or representative of a party (such as the party's attorney) is not discoverable:

If made in anticipation of litigation

A rancher purchased cattle from a breeder. As payment for the cattle, the rancher gave the breeder a promissory note that obligated the rancher to pay the breeder a lump sum of $80,000 18 months after the purchase. During the course of the year that he had the cattle, however, the rancher discovered that the cattle were diseased, so a year after the purchase the rancher filed an action against the breeder in federal district court for breach of warranty, alleging that the cattle were diseased at the time of sale the previous year. The breeder will file his answer within three weeks. May the breeder assert in his answer a counterclaim against the rancher seeking payment of the promissory note?

No, because the claim will not yet be mature when the breeder files his answer. At the time the rancher filed his complaint and at the time the breeder files his answer, the breeder will have no claim. One year has passed since the purchase. The rancher has no obligation to pay until the note matures 18 months after the purchase. In order for a counterclaim to be compulsory it must not only arise out of the same transaction or occurrence as the plaintiff's claim, the defendant must have the claim at the time the plaintiff serves his pleading. The breeder will have no claim until 18 months after the purchase.

A patient sued a surgeon for medical malpractice, alleging that the surgeon used an improper procedure during cardiac surgery, thereby permanently injuring the patient. The surgeon then wrote to a colleague, who was a renowned cardiologist, asking whether in her opinion the procedure was proper. In response, the colleague stated that the procedure was likely improper, but that she was unsure whether the patient's injuries resulted from it. After receiving the colleague's letter, the surgeon did not have any further communication with her about the matter. Is the letter discoverable?

No, because the colleague will not testify at trial on behalf of the doctor. The letter is not discoverable because the colleague is a nontestifying expert. An expert is a person with knowledge, skill, experience, training, or education in a particular field. The opinion of an expert consulted in anticipation of litigation is discoverable if a party intends to call the expert as a trial witness. Conversely, the opinion of an expert who is retained in anticipation of litigation but who is not expected to testify at trial (i.e., a consulting expert) is discoverable only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means.

While working on a site in State A, a State B construction worker was standing near a steel crane when the crane's boom swung near a high tension power line. The worker was electrocuted and severely injured. The worker filed an action in federal district court against the power company that owns the power lines. The action seeks $500,000 and alleges that the power company's negligent construction, maintenance, and operation of the power lines caused the injury. The power company is a State A corporation and all its operations are in State A. The power company filed a third-party complaint against the owner-operator of the crane, a State B citizen. The third-party claim is based on state law and alleges that the crane's owner-operator is liable to the power company for any liability the power company has to the injured worker. The worker amended his complaint to add a state law negligence claim for $500,000 against the crane's owner-operator. Does the federal court have subject matter jurisdiction over the worker's claim against the owner-operator of the crane?

No, because the court does not have supplemental jurisdiction over the worker's claim against the owner-operator of the crane. For cases based solely on diversity, supplemental jurisdiction is not available for claims against persons made parties under the impleader rules when use of supplemental jurisdiction would be contrary to the requirements of diversity jurisdiction. In the instant case, the owner-operator shares state citizenship with the worker and was made a party when the power company impleaded him on a claim for indemnity.

A woman who had been living in a foreign country for many years traveled to the United States to assist her brother, who had been indicted for a serious crime committed in State A. She retained a lawyer who resided in State A to represent her brother, and then she returned to the foreign country. Thereafter, the lawyer sent the woman a bill for $100,000 for his services, but she refused to pay. Before she moved to the foreign country, the woman had resided in State B. Although the woman is still a citizen of the United States, she had moved to the foreign country 10 years ago, intending to live there permanently. May the lawyer commence an action against the woman for breach of contract in the federal court for State A?

No, because the court lacks subject matter jurisdiction. The court lacks subject matter jurisdiction of the action because the lawyer's state law claim is supported neither by diversity of citizenship jurisdiction nor by alienage jurisdiction. Although the woman is a citizen of the United States, she is not a citizen of any state of the United States. A person is a citizen of the state or country where she is domiciled. The question tells us that the woman moved from State B to a foreign country and has been living there for many years. Thus, it is reasonable to conclude that she changed her domicile from State B to the foreign country. However, the woman is not an alien; rather she is a United States citizen without a state citizenship

A plaintiff brought an action in a state court against a defendant, a city police chief in the state, alleging civil rights violations under 42 U.S.C. section 1983. The defendant moves to dismiss the state suit on the ground that the action must be brought in federal court because a federal question is involved. Should the court grant the defendant's motion to dismiss?

No, because the federal courts and state courts have concurrent jurisdiction over the action. The federal courts and the state courts have concurrent jurisdiction over most types of actions. The few areas over which the federal courts have exclusive jurisdiction include bankruptcy cases, patent and copyright cases, antitrust cases, and a few other less common types of actions.

A tourist from State A was severely injured in a bar fight in State B. The tourist filed a battery action against on one of the bar's patrons, seeking $100k for his injuries. The defendant patron claims that the tourist is mistaken about who hit him. The patron says that he did not touch the tourist. The patron claims that it was the bar's bouncer ---who looks like the patron---who hit the tourist and then continued to pummel him. The bouncer claims that he never touched or harmed the tourist. Can the patron assert a third-party claim against the bouncer to bring him into the action?

No, because the patron has no legal basis to assert a claim against the bouncer and is not seeking to recover from the bouncer any portion of the patron's liability to the tourist. The patron cannot assert a third-party claim against the bouncer to bring him into the action. Third-party claims may be asserted only to obtain recovery, and that recovery must be for the defendant/third-party plaintiff's own liability to the plaintiff. Since the patron is not seeking to recover from the bouncer any portion of the patron's liability to the tourist, he cannot assert a third-party claim.

A small corporation manufactures and sells widgets in State A and State B. It is a State A corporation and it operates three stores from which it sells its widgets—two are in the District of State A and one is in the District of State B. The corporation has no presence, sales, or operations anywhere else. A consumer who resides in the District of State C purchased a widget from the corporation's State B store. The consumer was subsequently injured while using the widget at his home. The consumer intends to file a products liability action against the corporation in federal district court. In what district or districts is venue proper?

The District of State C, the District of State B, and the District of State A. Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. If there is no district anywhere in the United States that satisfies (i) or (ii), the action may be brought in a judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. The District of State C (place of the injury) and the District of State B (place of purchase) are proper because substantial events giving rise to the claim occurred there. A corporation is deemed to reside in any district in which it is subject to personal jurisdiction with respect to the action in question. The facts state that the manufacturer is a State A corporation and has its principal place of business in the District of State A. As a result, it is subject to personal jurisdiction there based on a general jurisdiction theory. Thus, the District of State A is a place of proper venue because that is where the manufacturer (the only defendant) resides for purposes of venue.

Following a midair collision, a passenger in one of the planes, a citizen of State A, sued the Federal Aviation Administration in federal court under the Federal Tort Claims Act, alleging negligence on the part of its air traffic controllers. The passenger also named the pilot of the other plane, a citizen of State A, as a defendant for a claim based on state law negligence. The pilot moves for dismissal as to him. If the court grants the motion to dismiss, what is the most likely reason?

The court has declined to exercise supplemental jurisdiction. If the court grants the motion, it will most likely be because it decided not to exercise supplemental jurisdiction over the passenger's claim against the pilot. A defendant in the pilot's position is a "pendent party"; i.e., one who is involved in an action only with respect to a claim that does not satisfy a basis of federal subject matter jurisdiction. (Here, there is no diversity or federal question jurisdiction as to the claim against the pilot, and the claim is a state-law claim.) The supplemental jurisdiction statute allows jurisdiction as to a claim that is transactionally related to one over which the court has federal question jurisdiction. Note, however, that the exercise of supplemental jurisdiction is discretionary with the court, taking into consideration whether the pendent claims raise novel issues of state law, whether the claims based on state law predominate over the federal law claims, or when the claims based on federal law have been dismissed.

An author from State A filed a claim in federal court sitting in State B against a publisher headquartered in State B. The complaint alleged that the publisher plagiarized a portion of the author's book and asserted both a copyright infringement claim under federal law and an unfair business practices claim under an applicable State B statute. At trial, the publisher presented evidence that the author never filed the copyright infringement claim with the appropriate federal agency, as required by the federal statute, thereby invalidating the copyright infringement claim. The claim for unfair business practices, however, was still capable of obtaining a favorable verdict. The publisher moved for dismissal of the state law claim as well. How should the federal court rule?

The court may dismiss or hear the state law claim in its discretion, but will likely retain jurisdiction over it. When a claim is in federal court under federal question jurisdiction, and the plaintiff has a state law claim against the defendant that cannot invoke diversity jurisdiction, the federal court has discretion to exercise supplemental (pendent) jurisdiction over the state law claim if the federal and state claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding. The court may continue to exercise supplemental (pendent) jurisdiction over the state claim even though the federal claim is dismissed on the merits. However, the state claim should probably also be dismissed (without prejudice) if the federal claim is dismissed before trial

A resident of State A sued a resident of State B in federal district court in State B for breach of contract. Jurisdiction was based on diversity of citizenship. The plaintiff alleged that the contract was entered into in State C and was to be performed in State D. The plaintiff further alleged that the defendant failed to perform. While hearing this case, what substantive law should the federal district court apply?

The court should apply the law that the State B state court would apply. In a diversity case, the federal court applies the law that would be applied by the courts of the state in which the federal court is located. This includes the state's choice of law rules.

In exchange for future royalty payments, an inventor sold a developer a license to use the inventor's patented technology. The inventor and the developer are citizens of different states. A month later, the inventor and developer were in a traffic accident entirely unrelated to their patent licensing transaction. A few months after that, the inventor filed a breach of contract action against the developer seeking $250,000 in royalty payments. The developer then filed two counterclaims, one alleging that the inventor's licensed product did not work properly and one alleging negligence and seeking $150,000 in damages for injuries sustained in the traffic accident. The inventor was also injured in the accident and believes the developer's negligence was the cause of the accident. May or must the inventor file a counterclaim against the developer to recover $50,000 in damages he sustained in the accident?

The inventor must assert the claim as a counterclaim or he will be barred from later asserting it because the inventor's tort claim is a compulsory counterclaim. The inventor must file a counterclaim against the developer to recover the $50,000 in damages from the accident. As between the plaintiff and the defendant, any claim that arises from the same transaction or occurrence as a claim asserted against a party is a compulsory counterclaim—even if the party asserting the counterclaim is a plaintiff. The way to think about these claims is that the plaintiff, the inventor, is essentially asserting two claims against the developer, and a single plaintiff may aggregate his claims against a single defendant. (Had the inventor included both claims in his original complaint, the claims could have been aggregated, giving the court subject matter jurisdiction based on diversity.)

If the defendant appears but does not file an answer when there is not a sum determinable, what must the plaintiff file to enter the default judgment

The plaintiff must file a motion to have the judge enter the default judgment. A defendant against whom a default is entered loses the right to contest liability unless the entry of default is set aside. However, the amount of damages must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages. If the defendant has appeared, even though he/she has not answered, he/she must be notified of the request for a default judgment by first-class mail at least seven days before the hearing on the application for a default .

A plaintiff from State A filed a diversity action in the federal court for State B against the defendant from State B, alleging that, 28 months before, the defendant's negligence committed in State A caused the plaintiff's damages. The statute of limitations in State A is two years, whereas the statute of limitations in State B is three years. Each state would apply its own statute of limitations under its own choice of law principles. The defendant timely moved the federal court for State B to transfer the case to the federal court for State A, alleging that it would be more convenient to the parties and witnesses if trial were held in State A. If the court grants the motion, which statute of limitations should the court apply?

The statute of limitations for State B, because the case was properly filed in the federal court for State B. Under 28 U.S.C. section 1391, venue is proper in (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or (ii) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or where a substantial part of the property that is the subject of the action is located. (Note that there is a fallback provision when (i) or (ii) do not apply.) Here, venue was proper either in State B (the domicile of the sole defendant) or in State A (the place of the accident). Under 28 U.S.C. section 1404(a), when a case is properly filed in federal court, the federal district court may nonetheless transfer the case, for the convenience of the parties and witnesses, to another district or division where it might have been brought or to which the parties have consented. When transfer is made under section 1404(a), the law of the transferring court ordinarily applies. (There is an exception when transfer is based on a forum selection clause, but that exception is not applicable under these facts.)

A citizen of State A asserted a state law claim of $80,000 against a citizen of State B in the federal district court. The State B citizen has a state law claim against another citizen of State B for $90,000 that arose out of the same transaction or occurrence as the original complaint. As a result, the State B citizen brought a third-party action against that person.

Yes, because the court has supplemental jurisdiction. The court has subject matter jurisdiction over this claim under its supplemental jurisdiction powers. The prerequisites for diversity of citizenship do not exist, because both are residents of State B. However, the court would have supplemental jurisdiction over a third-party claim that arose from the same transaction or occurrence as the underlying claim.

Three years ago a woman's husband abandoned her and their home in State A and moved to State B, where he is now a citizen. The woman now files against her husband for divorce in federal court in State A, seeking a property settlement valued at $200,000. The husband moved to dismiss for lack of jurisdiction. Will the court grant the husband's motion?

Yes, because federal courts do not have subject matter jurisdiction over domestic relations cases. Even if diversity and the minimum amount in controversy are present, the federal district courts will not exercise jurisdiction over domestic relations or probate proceedings.

An employee sued his employer in federal court in State B, alleging that the employer violated federal civil rights statutes by permitting a hostile work environment in which the employee was afraid to go to work due to harassment from a co-worker. The co-worker is from State A, and both the employer and employee are from State B. The employee properly joined the co-worker under the permissive party joinder rule. The law in State B provided the basis for the employee's claim against the co-worker, and neither claim exceeded $20,000. Does the federal court have supplemental jurisdiction over the employee's claim against the co-worker?

Yes, because supplemental jurisdiction may include claims that involve the joinder or intervention of additional parties. The court has supplemental jurisdiction. When jurisdiction is based on a "federal question" claim, and diversity jurisdiction is not available, a nonfederal claim can be joined only if the court has supplemental (pendent) jurisdiction over it. The court will have supplemental (pendent) jurisdiction over the claim if it arose from the same transaction or occurrence as the federal claim. Here, although diversity jurisdiction is not available in the claim between the employee and the co-worker because the amount in controversy does not meet the more than $75,000 jurisdictional limit, the court will have supplemental jurisdiction because the hostile work environment claim arose out of the same transaction or occurrence as the federal civil rights claim.

A homeowner from State A filed a breach of contract and negligence action against a State B architect in federal district court, seeking damages for problems with the homeowner's house. In designing the house, the architect relied on calculations performed by a State B engineer whom the architect hired to assist him with the project. The architect believes that incorrect calculations by the engineer caused any defects in the design. May the architect assert and maintain an indemnity claim against the engineer in the pending federal action?

Yes, because the architect's claim is a proper impleader claim, and the court has supplemental jurisdiction over the claim. The architect may assert and maintain an indemnity claim against the engineer. The architect's claim is a proper impleader claim because the architect's claim asserts that the engineer is liable to the architect for any liability the architect has to the homeowner. If the third-party claim does not meet the requirements for diversity of citizenship or federal question jurisdiction, it will invoke supplemental jurisdiction because the claims will meet the common nucleus of operative fact requirement of supplemental jurisdiction. Here, the court has supplemental jurisdiction over the architect's claim because it arises from a common nucleus of operative fact as the homeowner's original claim. The fact that the architect and engineer share state citizenship does not defeat supplemental jurisdiction. A claim by a defendant against a third-party defendant is not among the prohibited uses of supplemental jurisdiction specified in 28 U.S.C. section 1367(b)

A corporation manufactured a patented automatic potato peeler. Subsequently, that corporation's biggest rival manufactured a similar potato peeler. Both are corporations of the same state. The state has a unique statute authorizing quadruple damages for unfair business competition relating to potatoes; however, there is considerable debate whether the law is constitutional under the state constitution. The corporation holding the patent sued its rival in federal court, alleging that the rival corporation violated its patent and the unfair business law. Shortly after the pretrial meeting of the parties required under the Federal Rules, the two companies reached a settlement of the patent infringement claim. May the court dismiss the remaining claim?

Yes, because the federal court may decline to exercise its supplemental jurisdiction. The court may dismiss the remaining claim. The court may decline to exercise its supplemental jurisdiction on one of four bases: (i) the case presents a novel or complex issue of state law; (ii) in a federal question case, the nonfederal claim substantially predominates the case; (iii) the claims over which the federal court had original jurisdiction have been dismissed (taking into consideration the amount of time the court has spent on the case); or (iv) there are extraordinary circumstances for declining jurisdiction. Here, bases (i) and (ii) above would apply.

Four investors, all of whom are American citizens, own as a partnership a chain of 15 car dealerships in a number of states. Two of the investors live in State A, one lives in State B, and one lives in State C. The investors leave the day-to-day operation of each dealership to a manager that the partnership employs. The investors leave the management of the entire chain of dealerships and the day-to-day operation of the partnership to several key officers that it employs. The officers operate out of the partnership's largest dealership, which is in State D. A customer of the State D dealership sued the partnership in federal district court in State D, alleging fraud and breach of contract arising from her purchase of a car, and claiming, in good faith, damages exceeding $75,000. The customer is a citizen of State D. Does the federal district court in State D have subject matter jurisdiction over the customer's action against the partnership?

Yes, because the plaintiff customer is a citizen of State D while the defendant partnership is a citizen of State A, State B, and State C. The court has subject matter jurisdiction. Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff is a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. A natural person's citizenship is the state that is the person's permanent home. A partnership is a citizen of each state of which one of its partners is a citizen, both limited and general.

A supplier of rivets contracted to supply rivets to an aircraft manufacturer. The aircraft manufacturer cancelled the order, and the supplier intends to file a breach of contract action against the aircraft manufacturer, seeking damages of $600,000. The supplier is a State A corporation, and all its operations are in State A. The aircraft manufacturer is a State B corporation. Its corporate headquarters are in State C, but its manufacturing operations are in State A. The supply contract was signed in State A, and it provided that the rivets would be delivered and paid for in State A. Can the supplier maintain an action based on diversity of citizenship jurisdiction in a federal district court?

Yes, because the supplier is a citizen of State A and the aircraft manufacturer is a citizen of State B and State C. The supplier can maintain the action. Diversity of citizenship jurisdiction requires complete diversity—meaning that no plaintiff may share state citizenship with any defendant—and the amount in controversy must exceed $75,000. Here, the issue is the citizenship(s) of the parties. For purposes of diversity of citizenship jurisdiction, a corporation is deemed to be a citizen of every state in which it is incorporated and the one state in which it has its principal place of business. The supplier is a citizen of State A only, given that State A is both its state of incorporation and its principal place of business. The aircraft manufacturer is a citizen of State B, its state of incorporation, and the state identified as its principal place of business. The United States Supreme Court has held that the principal place of business is the corporate headquarters where the corporation's high level officers direct and control the corporation's activities. Here, the aircraft manufacturer's headquarters are in State C, making State C its principal place of business despite the fact that its manufacturing operations are in State A.

A State A citizen filed an antitrust action against an State B corporation in federal district court. Fourteen days after filing the complaint and before the State B corporation filed any response, the State A citizen sought to file an amended complaint, adding a breach of contract claim against the same State B corporation. The breach of contract claim was completely unrelated to the antitrust claim, and the facts underlying the two claims were completely different and distinct. May the State A plaintiff amend his complaint?

Yes, even without leave of the court or written consent of the defendant. The plaintiff may amend his complaint. A party may amend a pleading to which a responsive pleading is required of right if the party does so within 21 days after the responsive pleading or other response is served. [Fed. R. Civ. P. 15(a)(1)(B)

Are appeals allowed for the denial of injunction?

Yes, federal law permits appeal of orders denying an injunction. Interlocutory orders denying an injunction may be appealed in the federal court system

A State A plaintiff filed a breach of contract action against a State B defendant in federal district court, seeking $100,000 in compensatory damages. Three months after the plaintiff filed and served the complaint, the plaintiff and defendant were in an automobile accident. May the State A plaintiff assert a negligence claim against the State B defendant in the pending breach of contract action to recover damages incurred in the automobile accident?

Yes, regardless of the amount of the negligence claim, because the court on motion may permit a plaintiff to file a supplemental pleading setting out events that happened after the pleading to be supplemented. The plaintiff may assert the negligence claim if permitted by the court. The court on motion may permit a plaintiff to file a supplemental pleading that relates to matters occurring after the date of the original pleading. [Fed. R. Civ. P. 15(d)]

An employee filed an employment discrimination action against her employer in federal district court. The employee alleges that she has not been promoted because of her gender. She intends to call a co-worker as a witness at trial. The co-worker will testify that a senior manager of the employer told the co-worker that the employee would not be promoted because the employer deemed women to be poor managers. Is the identity of the co-worker subject to discovery by the employer?

Yes, the employee must disclose the identity of the co-worker even without any request from the employer. As an initial disclosure, a party must provide the names of individuals likely to have discoverable information that the disclosing party may use to supports its claims or defenses. Here, the employee initially plans to call the co-worker at trial to support her discrimination claim, and thus falls within the initial disclosure requirement.

An account holder had $100k in a savings account at a bank, which is incorporated and has its PPB in State A. According to the terms of the account, in the event of the account holder's death, the funds in the account are to be paid to the account holder's nephew, "John Smith." Unfortunately, at her death, the account holder had two nephews named John Smith, John A. Smith and John B. Smith, both of whom are citizens of State B and claim the proceeds. The bank is not sure who should be paid, but it knows that it has no rights to the funds. May the bank bring an interpleader action federal court?

Yes, under FRCP 22, but not under the statutory interpleader provisions of 28 USC section 1335 Under Rule 22 interpleader, the normal rules as to SMJ apply. Therefore, there must be either a FJ or complete diversity between the stakeholder and the claimaints and more than $75K in controversy. Here, the stakeholder/plaintiff in the action would be the bank, which is a citizen of State A because it has a PPB and was incorporated therein. The claimants/defendants would be the two nephews from State B. Thus, complete diversity exists, and the $100k value of the account easily exceeds the $75k amount in controversy requirement. Thus, there is subject matter jurisdiction in federal court under Rule 22 interpleader.