MBE QUESTIONS CIVIL PROCEDURE

Which of the following statements as to recognition of judgments is true?

A state court generally must recognize the judgments of a sister state and federal courts generally must recognize judgments of state courts Under the Full Faith and Credit Clause of the Constitution and federal statutes, a state court generally must recognize the judgments of a sister state and federal courts generally must recognize judgments of state courts. Recognition of judgments is required between state courts, between state and federal courts, and between federal courts.

To satisfy the amount in controversy requirement for diversity jurisdiction, a plaintiff may:

Aggregate unrelated claims against a single defendant To satisfy the amount in controversy requirement for diversity jurisdiction, a plaintiff may aggregate unrelated claims against a single defendant. In other words, the plaintiff may aggregate all of her claims regardless of whether the claims are legally or factually related to each other. Hence, it is not correct that the plaintiff may aggregate only related claims against a single defendant. A plaintiff who has an action against several defendants may not aggregate unrelated claims (i.e., claims based on separate liabilities). Several plaintiffs cannot join their lawsuits to bring unrelated claims against the same defendant. They can only aggregate their claims when they are seeking to enforce a single title or right in which they have a common or undivided interest (e.g., joint owners of real estate).

A restaurant owner in State A bought two large freezers from a manufacturer of commercial refrigeration equipment with its principal place of business in State B. Within one week and after being fully stocked with meat, one of the freezers broke down. The restaurant owner filed a state-based products liability action against the manufacturer in federal court in State A, and included a demand for a jury trial. Under the law in State A, jury verdicts do not need to be unanimous, but the Federal Rules of Civil Procedure require jury verdicts to be unanimous. At trial, the restaurant owner makes a motion asking the court to apply the State A law. How should the court rule on the motion?

Deny the motion, because the Federal Rules of Civil Procedure apply in federal court as long as they are consistent with the Rules Enabling Act and not unconstitutional. The court should deny 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 are on point, the federal court must apply federal procedural law as long as the federal rule is valid. Under the Rules Enabling Act, a Federal Rule is valid if it deals with "practice or procedure" and does not "abridge, enlarge, or modify" a substantive right. Here, there is a specific federal procedural rule that is on point [Fed. R. Civ. P. 48], which requires jury verdicts to be unanimous, unless the parties agree otherwise. Since there is no evidence of agreement, the federal procedural rule will apply, and the motion should be denied. Jury verdict rules are procedural and thus Federal Civ Pro rules regarding jury verdicts will apply.

A new trial may be granted when the verdict is:

Excessive, inadequate, or against the weight of the evidence. A new trial may be granted when the verdict is excessive, inadequate, or against the weight of the evidence. Note that a new trial also may be granted because of an error during the trial (usually going to the admissibility of evidence or the propriety of the instructions) or because of jury misconduct. Answers that state that a verdict that is excessive or inadequate only or against the weight of the evidence only are incorrect because they each leave out a reason why a new trial may be ordered due to a problem with the verdict. The answer that states that a new trial may be granted when a verdict is excessive, inadequate, or such that a reasonable jury would not have a legally sufficient basis to come to that verdict is incorrect because the reasonable jury standard is similar to the standard for judgment as a matter of law, not the standard for granting a new trial.

A consumer filed a breach of contract action against a seller in a state court in State A, seeking $100,000 in damages. The consumer was a citizen of State A. The seller was a State B corporation whose principal place of business was in State A. Five days after being served with the complaint and summons, the seller removed the action to federal district court. Seven months later, the consumer filed a motion to remand the action back to state court. How should the federal court rule on the motion to remand the action to state court?

Grant the motion, because the federal court lacks subject matter jurisdiction. The court should grant the motion. A defendant may remove an action that could have originally been brought in the federal courts. Diversity jurisdiction requires complete diversity--meaning that each plaintiff must be a citizen of a different state from every defendant--and the amount in controversy must exceed $75,000. The citizenship of an individual is his permanent home, and a corporation is a citizen of every state in which it was incorporated and the one state in which it has its principal place of business. Here, the consumer was citizen of State A, and the corporation was a citizen of State B (its state of incorporation) and of State A (in which it had its principal place of business). Thus, the case was not removable because complete diversity does not exist, and, as a result, there is no subject matter jurisdiction based on diversity of citizenship. Nonetheless, the case here was removed to federal court. If the plaintiff bases the motion to remand on a defect other than subject matter jurisdiction (i.e., a defect in the removal procedure), the motion to remand must be brought within 30 days of removal. There is no such time limit for a lack of subject matter jurisdiction. The court must remand whenever it is shown that there is no subject matter jurisdiction. Here, since the motion to remand is based on a lack of subject matter jurisdiction, as explained above, the fact that seven months has passed since removal is largely irrelevant.

While traveling on a commercial bus line, a passenger was injured when some luggage fell on him. As required by applicable state law, the bus company's in-house attorney conducted an investigation and filed the required report with the state transportation department. The passenger subsequently filed a civil action against the bus company in federal district court, seeking compensatory damages for the injuries he suffered. During discovery, the passenger's lawyer served on the bus company a request for production of documents, including a request for the report that the bus company filed with the state. The bus company objected to the request for the report and refused to produce it on the grounds that the report was privileged and protected from discovery under the work product doctrine. It did, however, produce other documents that were requested. The passenger then filed a motion to compel production of the report. If the court finds that the bus company's claims of privilege and work product were not substantially justified, what orders must the court make relating to the passenger's request for production of the report?

If the passenger's attorney has attempted in good faith to resolve the dispute, the court must order the bus company to produce the report and to pay the passenger's reasonable costs in making the motion, including attorney's fees. However, costs may not be awarded if: (i) the movant filed the motion before attempting in good faith to obtain disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances exist that make an award of expenses unjustified. [Fed R. Civ. P. 37(a)]

A college student from State A hit another car driven by a resident from State B when the college student was traveling through State B. The State B driver brought an action in State B state court against the State A college student, who has limited financial resources. The college student filed a motion to dismiss, claiming the State B court lacks personal jurisdiction. What is the best argument to support the college student's motion to dismiss?

It is unfair, inconvenient, and highly unreasonable to require a college student with limited financial resources to defend the action in State B for financial reasons. The best argument the college student has to defend a motion to dismiss for lack of personal jurisdiction is to argue that the fairness prong of the constitutional minimum contacts test is not met. In addition to sufficient minimum contacts with the forum state, personal jurisdiction must not offend "traditional notions of fair play and substantial justice." The Supreme Court in International Shoe listed several factors relevant to assess the fairness factor, including the burden on the defendant in terms of convenience in defending the action. Here, the best argument out of the four choices listed is that it would be unfair, inconvenient, and highly unreasonable for a college student from State A with limited financial resources to defend the action in State B. Note that this still may be a losing argument, as this argument will not prevail unless the burden to the defendant is "so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent." However, this is still the best argument to support the motion to dismiss for lack of personal jurisdiction.

A patient properly filed a medical malpractice claim against a doctor in federal district court. The complaint simply asserted negligence as the grounds for relief without any facts supporting the claim. The doctor filed a pretrial motion for a more definite statement, which the court denied. Immediately thereafter, and without submitting an answer, the doctor filed a motion to dismiss, asserting that the court lacked personal jurisdiction. Will the court grant this motion to dismiss?

No, because a defendant must file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs first. A defendant must file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs first. If he does not, the defendant waives the defense. Here, the defendant first filed a pretrial motion for a more definite statement, which the court denied. Since he did not assert the lack of personal jurisdiction in this first motion, he waived the defense in the subsequent motion. (A), is wrong because it misstates the rule. This affirmative defense must be asserted in either a motion or an answer, whichever is first, not later, or it is waived.

A minivan driver from State A and a semi-truck driver from State B were involved in a serious collision on a highway in State B. The minivan driver sued the truck driver in State A for negligence, and served the truck driver with the summons and complaint via first-class mail. Although the truck driver received the documents, he failed to respond to them or appear in court. The minivan driver eventually obtained a valid default judgment in state court. State A's requirements for service of process are the same as the requirements under the Federal Rule of Civil Procedure.

No, because the truck driver may collaterally attack the default judgment for insufficient service of process. The minivan driver will not be successful. Default judgments that are constitutionally or procedurally defective are subject to a collateral attack and may not be enforced under the Constitution's Full Faith and Credit Clause. Generally, under the Federal Rules of Civil Procedure [Rule 4], service of process can be made by: (i) personal service, (ii) service left at the defendant's usual place of abode with one of suitable age and discretion residing therein, or (iii) service upon an authorized agent of the defendant. Alternatively, service may be made under state rules or by mail under the waiver of service provision of Rule 4(d). A collateral attack is the name used to describe a defendant's ability to challenge a default judgment where the defendant never appeared in the action at all. Default judgments that are either constitutionally or procedurally defective are subject to collateral attacks. Under Rule 4 of the Federal Rules of Civil Procedure, which is the same in State A, if no acknowledgment is made to a summons and complaint that was improperly served via first class mail, a The minivan driver will not be successful. Default judgments that are constitutionally or procedurally defective are subject to a collateral attack and may not be enforced under the Constitution's Full Faith and Credit Clause. Generally, under the Federal Rules of Civil Procedure [Rule 4], service of process can be made by: (i) personal service, (ii) service left at the defendant's usual place of abode with one of suitable age and discretion residing therein, or (iii) service upon an authorized agent of the defendant. Alternatively, service may be made under state rules or by mail under the waiver of service provision of Rule 4(d). A collateral attack is the name used to describe a defendant's ability to challenge a default judgment where the defendant never appeared in the action at all. Default judgments that are either constitutionally or procedurally defective are subject to collateral attacks. Under Rule 4 of the Federal Rules of Civil Procedure, which is the same in State A, if no acknowledgment is made to a summons and complaint that was improperly served via first class mail, a defendant must be served according to the Federal Rules of Civil Procedure. If not, it is considered "procedurally defective" and is therefore subject to a collateral attack. Here, because service by first class mail is insufficient under the Federal Rules, the truck driver may collaterally attack the default judgment arguing insufficient service of process.

A pedestrian sued a driver for personal injuries in federal court, properly invoking diversity of citizenship jurisdiction. In the complaint, the pedestrian alleged that the driver ran a red light and struck the pedestrian while the pedestrian was in the crosswalk. Concurrent with the accident, a police report was prepared on which the name and address of a witness to the accident was listed, but neither party requested a copy of the report from the police department. Thus, when the pedestrian submitted an interrogatory to the driver for the names and addresses of persons with knowledge of the accident known to the driver, the driver truthfully omitted the name of the witness. When asked during his deposition whether he knew of any witnesses, the driver again truthfully answered "I don't know of any." At trial, the jury found for the driver. In one of the special interrogatories answered by the jury, the jury found that the driver had the green light and that the pedestrian was crossing against the light. Six months and a day after a final judgment was rendered in favor of the driver, the pedestrian's attorney was contacted by the witness, who stated that the driver ran a red light and that the pedestrian had the "walk" sign when he attempted to cross the road. The pedestrian's attorney immediately moved for relief from judgment based on newly discovered evidence, and the trial judge granted the motion. On appeal, what should the court do?

Reverse the trial judge's decision, because the pedestrian could have discovered the witness's identity with reasonable diligence. The court should reverse the trial judge's decision.. On motion and just terms, the court may relieve a party from a final judgment or order on the following grounds: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year from the judgment; for the other grounds, the motion must be made within a reasonable time. (But remember that a lack of subject matter jurisdiction may be raised at any time.) Such a motion is left to the trial judge's discretion, and, on appeal, her decision will be reviewed on an "abuse of discretion" standard. Here, the motion would be based on newly discovered evidence. When deciding whether to grant or deny such a motion, the trial judge must determine whether the evidence could have been discovered with any amount of due diligence. Here, the name and address of the witness could have been easily discovered had the pedestrian's attorney simply requested a copy of the police report from the police department. This is such an obvious case of lack of due diligence on the part of a represented party that it would be an abuse of discretion to grant relief based on newly discovered evidence.

For a defendant to have such minimum contacts with the forum that the exercise of personal jurisdiction over him would be fair and reasonable, the court must find:

That he purposefully availed himself of that forum AND it was foreseeable that his activities would make him amenable to suit in the forum. For a defendant to have such minimum contacts with the forum that the exercise of personal jurisdiction over him would be fair and reasonable, the court must find that he purposefully availed himself of that forum AND it was foreseeable that his activities would make him amenable to suit in the forum. Defendant's contact with the forum must result from his purposeful availment with that forum. The contacts cannot be accidental. In addition to purposeful availment, the contact requirement of International Shoe requires that it be foreseeable that the defendant's activities make him amenable to suit in the forum. The defendant must know or reasonably anticipate that his activities in the forum render it foreseeable that he may be "haled into court" there.

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. Venue is proper in the District of State C 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. Here, the District of State C is a proper venue because a substantial part of the events giving rise to the claim occurred there. Additionally, at the time of the accident, the man's domicile was in State A. It remains his domicile until he acquires a new one by being physically present in a new place while intending to make that new place his permanent home. The man did not acquire a new domicile in State B because he has yet to be physically present there (although he does intend to make it his permanent home).

The Seventh Amendment guarantees a trial by jury in all cases where:

The claim is "at law," and the amount in controversy exceeds $20 The Seventh Amendment provides the right to a jury trial in federal courts for the determination of facts in all suits at common law where the amount in controversy exceeds $20. The Supreme Court has held that when legal and equitable claims are joined in one action, the legal claim should be tried first to the jury and then the equitable claim should be decided by the court. The jury's fact determinations bind the judge. The amount in controversy need not exceed $75,000. For subject matter jurisdiction based on diversity of citizenship, the amount in controversy must exceed $75,000; that amount does not affect the parties' right to a jury trial.

Under Federal Rule 41(b), _______ are grounds for a court to order an involuntary dismissal against a plaintiff.

The failure to prosecute the case, to comply with the Federal Rules, or to comply with a court order A court may, under Federal Rule 41(b), order an involuntary dismissal against a plaintiff on the defendant's motion or on its own motion for the failure to prosecute the case, to comply with the Federal Rules, or to comply with a court order. An involuntary dismissal is with prejudice, meaning that it operates as adjudication on the merits, unless the court orders otherwise. All of the other answers are incorrect because they are incomplete; because they each are missing an element, they are not the only reasons for involuntary dismissal under Federal Rule 41(b).

Assume that venue was proper in the district where a suit was originally brought. Is transfer to another district permitted, and if so where?

Transfer is permitted to another district where the action might have been brought, or to which all parties have consented Even where the original venue is proper, transfer is permitted to either (i) another district where the action might have been brought or (ii) a district to which all parties have consented. The policy behind this rule is that while venue may be correct, the parties or the witnesses might be greatly inconvenienced by the trial in the original forum.

The plaintiff sued the defendant in federal court for breach of contract. The case went to trial, and the jury found in favor of the plaintiff and awarded her $125,000. Judgment was entered on June 1. On June 10, the defendant filed a motion for a new trial. On June 18, the plaintiff files to enforce the judgment. The court has not issued any orders since the final judgment on June 1. May the plaintiff enforce the judgment?

Yes, because judgments are enforceable during pendency of post-trial motions unless the court otherwise orders. The plaintiff may enforce the judgment because judgments are enforceable while post-trial motions are pending unless the court otherwise orders and on such conditions for the security of the adverse party as are proper. Here, the court has not ordered a stay on enforcement; therefore, the plaintiff can enforce the judgment.

A restaurant franchise properly sued the franchise owner of one of its restaurants in federal court for breach of contract for refusing to display materials for the new marketing campaign it launched. The court scheduled a pretrial conference for the purpose of "pressuring" the parties to settle the case. Both parties were given proper notice of the scheduled hearing, but only the owner of the restaurant and her attorney appeared at the conference. The judge immediately issued an order requiring the restaurant franchise to pay the restaurant owner travel expenses and attorneys' fees for failing to attend. Is this a valid order of the court?

Yes, because the Federal Rules of Civil Procedure give the federal court discretion to order a pretrial conference for virtually any matter that is relevant, including settlement. This order by the court is valid. The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement. Moreover, this conference is to be attended by at least one of the lawyers for each side who will actually be conducting the trial, and by any unrepresented parties. A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference. Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys' fees) by other parties unless the court finds that circumstances make such an award unjust. Here, the judge does have the power to not only order a pretrial conference to expedite the trial and encourage settlement, but also to sanction the restaurant franchise to pay the restaurant owner's travel expenses and attorneys' fees for failing to appear. (A) is wrong because it is a misstatement of the law. The judge does have the power under the rules to order the party who fails to appear to pay the opposing side's attorneys' fees.

An employee filed in state court a civil action alleging sexual harassment in the workplace. She asserted federal statutory employment discrimination claims against her employer, and she asserted a state law battery claim against the co-worker who allegedly engaged in the sexual harassment. The plaintiff employee, the defendant employer, and the defendant co-worker are all citizens of the state in which the action was filed. May the defendants properly remove the action to federal district court?

Yes, the action may be properly removed to federal district court, regardless of the amount in controversy. The action may be properly removed regardless of the amount in controversy. A defendant may remove an action that could have originally been brought in the federal courts. Federal question jurisdiction is available when the plaintiff, in her well-pleaded complaint, alleges a claim that arises under federal law. In the instant case, the plaintiff is bringing a federal statutory employment discrimination claim. This presents a federal question, and removal is authorized on this basis. Once one claim satisfies the requirements for original federal subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. The battery claim arises out of the same transaction or occurrence as the employment discrimination claim. Thus, the court has supplemental jurisdiction over that claim. Removal would be based on federal question jurisdiction, and the restriction on an in-state defendant removing a case to federal court applies only when removal is based on diversity of citizenship jurisdiction. Similarly, federal question jurisdiction, unlike diversity of citizenship jurisdiction, does not have an amount in controversy requirement,