Chapter 6: Federal Rules 1-4.1, 81-83

What is the legal significance of the Advisory Committee Notes accompanying the Federal Rules of Civil Procedure?. Choose all correct answers. a. (The Advisory Committee Notes are not part of the Federal Rules of Civil Procedure and have not been approved by the U.S. Supreme Court.) b. (The Advisory Committee Notes are only guides; however they have assumed the force of veritable legislative history.) c. The Advisory Committee Notes are formidable secondary authority which means they can be cited as persuasive but not binding authority. d. The Advisory Committee Notes accompanying the Federal Rules of Civil Procedure have the same precedential value as an unpublished opinion in a legal action and may not be cited by any judge in any trial or appellate court decision or by any litigant in any brief or other material presented to any court.

a. (The Advisory Committee Notes are not part of the Federal Rules of Civil Procedure and have not been approved by the U.S. Supreme Court.) b. (The Advisory Committee Notes are only guides; however they have assumed the force of veritable legislative history.) c. (The Advisory Committee Notes are formidable secondary authority which means they can be cited as persuasive but not binding authority.)

The Federal Rules of Civil Procedure govern civil proceedings in the United States district courts. For which of the following propositions is Federal Rule 1 (or the accompanying Advisory Committee Notes) frequently cited as authority? a. The Federal Rules of Civil Procedure should be interpreted to favor decisions on the merits rather than ones based on technicalities. b. The Federal Rules of Civil Procedure should be interpreted to avoid confusion and avoid setting up a trap for the unwary. c. The Federal Rules of Civil Procedure should be interpreted to prevent a litigant from flouting the spirit of the Federal Rules even when a litigant's conduct might otherwise comport with the literal reading of the Rules. d. The Federal Rules of Civil Procedure should be interpreted to rescue clearly deficient pleadings in order to achieve substantial justice even though the pleadings totally devoid of substantive merit to establish a claim under the applicable law. e. All of the above answers are correct.

a. (The Federal Rules of Civil Procedure should be interpreted to favor decisions on the merits rather than ones based on technicalities.) b. (The Federal Rules of Civil Procedure should be interpreted to avoid confusion and avoid setting up a trap for the unwary.) c. (The Federal Rules of Civil Procedure should be interpreted to prevent a litigant from flouting the spirit of the Federal Rules even when a litigant's conduct might otherwise comport with the literal reading of the Rules.)

Which of the following are accurate statements about the Federal Rules of Civil Procedure? a. The Federal Rules of Civil Procedure were promulgated pursuant to the Rules Enabling Act and came into force in 1938. b. The U.S. District Courts have the inherent power to vary the Federal Rules of Civil Procedure when they disagree with how the Federal Rules of Civil Procedure have attempted to solve the problems they address. c. The Federal Rules are designed to be interdependent; in interpreting them courts should seek to harmonize the rules with one another; thus courts will only allow one rule to take precedence over another when a truly irreconcilable conflict arises. d. The Federal Rules of Civil Procedure apply all proceedings in the federal district courts and federal appeals courts except in criminal cases.Chapter 6: Federal Rules 1-4.1, 81-83

a. (The Federal Rules of Civil Procedure were promulgated pursuant to the Rules Enabling Act and came into force in 1938.) c. (The Federal Rules are designed to be interdependent; in interpreting them courts should seek to harmonize the rules with one another; thus courts will only allow one rule to take precedence over another when a truly irreconcilable conflict arises.)

"Proof of service" is a confirmation that that service of process has been made. It is also sometimes called "return of service" or a "certificate of service." The document is generally filed with the court by the process server,--potentially a sheriff,, a marshal or a professional process server. Which of the following statements about proof or service are accurate? a. It is the plaintiff's responsibility to confirm that proper service of process has been accomplished by arranging for the filing of a proof or service. b. The burden of proving proper service is always on the plaintiff. c. The proof of service should contain sufficient facts to confirm that valid service has been accomplished; the filing of a proof of service gives rise to an irrebuttable presumption which means that it cannot be contradicted by the defendant. d. Filing of a proof of service is recognized as prima facie evidence that service was properly accomplished ​[The Latin expression prima facie means "at first sight" or "at first view" or "based on first impression."} e. All of the above are accurate statements.

a. It is the plaintiff's responsibility to confirm that proper service of process has been accomplished by arranging for the filing of a proof or service. d. Filing of a proof of service is recognized as prima facie evidence that service was properly accomplished ​[The Latin expression prima facie means "at first sight" or "at first view" or "based on first impression."}

At common law, the forms of action were several different procedures by which a legal claim could be made during much of the history of the English common law. Now that the Federal Rules of Civil Procedure are in force, how many forms of action are there in federal court? a. One known as the civil action. b. Two known as law and equity. c. Two consisting of (1) actions ex contractu, arising out of a breach of contract and (2) actions ex delicto, based upon the commission of a tort. d. Seven consisting of (1) a complaint, (2) an answer to a complaint; (3) an answer to a counterclaim denominated as such; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) a reply to an answer.

a. One known as the civil action.

Assume that a company had a dispute over commissions with one of its employees. The employee is fired and the former employee sues the company in an appropriate state court to recover the commissions the employee allegedly earned. Assume that the state has service-of-process rules identical to those in the Federal Rules of Civil Procedure. The former employee attempts to serve the president of the company with the summons and complaint. However, a security guard prevents the former employee from doing so and escorts the former employee from the company headquarters, but the former employee manages to hand the summons and complaint to a young janitor in the parking lot. The janitor enters the building and places the summons and complaint on the company's general counsel's desk after work hours. On which of the following grounds, if any, was service potentially IMPROPER? a. Service may be improper because the plaintiff personally served the process; parties to a lawsuit are not proper persons to serve process.. b. Service may be improper because the janitor and the corporate general counsel are not officers or managing agents or general agents of the company; as a result the company was not properly served with process. c. Service may be improper if the general counsel was on vacation at the time of service and the general counsel's secretary simply filed the papers the next morning without letting the general counsel or the president know about the service; assume that no one in the company learned of the lawsuit until a default judgment was entered against the company; service of process always requires actual notice be received by the defendant and it is improper on that ground. d. Service may be improper because the Federal Rules of Civil Procedure do not authorize service by leaving a copy of the summons and complaint at the company's headquarters.

a. Service may be improper because the plaintiff personally served the process; parties to a lawsuit are not proper persons to serve process.. b. Service may be improper because the janitor and the corporate general counsel are not officers or managing agents or general agents of the company; as a result the company was not properly served with process. d. Service may be improper because the Federal Rules of Civil Procedure do not authorize service by leaving a copy of the summons and complaint at the company's headquarters.

TRUE OR FALSE: The Federal Rules of Civil Procedure do not extend or restrict the subject-matter jurisdiction of the federal court nor do they extend or limit the venue of actions in those courts. a. TRUE: Federal Rule 82 makes clear that the Rules are entirely procedural and that they have leave unchanged the various statutes setting out the subject-matter jurisdiction of the federal courts and venue of federal court actions. b. FALSE: The Federal Rules of Civil Procedure limit the type of claims that can be joined; as a result, the subject-matter jurisdiction of the federal courts is necessary (although indirectly) affected.

a. TRUE: Federal Rule 82 makes clear that the Rules are entirely procedural and that they have leave unchanged the various statutes setting out the subject-matter jurisdiction of the federal courts and venue of federal court actions.

Which of the following statements, if any, about commencement of civil actions in federal court are CORRECT? a. Unless the Federal Rules or local procedure provide otherwise, legal papers such as the complaint must now be filed electronically with the court. b. When a complaint is filed electronically, commencement of the action is ordinarily deemed to have occur when the filing process is complete even if the filing system has an "electronic glitch" or the filing fee remains unpaid. c. Because the federal district courts are "always open," a complaint is still timely as of that day even if it was delivered to the office after the clerk's regular business hours. d. Certain federal statutes contain special preconditions that must be met as part of commencing a civil actions; good examples include exhaustion of available administrative remedies or obtaining a "right-to-sue" letter; however, in such situations, failure to satisfy those preconditions will still toll the statute of limitations if the complaint was filed before the statute of limitations has run. e. If the original complaint is mailed to the Clerk's Office rather than sent electronically, the filing of the complaint is ordinarily not considered complete and the action not commenced; instead, the date of commencement of the action is when he U.S. Postal Service actually delivers the complaint to the court. f. All of the above statements are correct.

a. Unless the Federal Rules or local procedure provide otherwise, legal papers such as the complaint must now be filed electronically with the court. b. When a complaint is filed electronically, commencement of the action is ordinarily deemed to have occur when the filing process is complete even if the filing system has an "electronic glitch" or the filing fee remains unpaid. c. Because the federal district courts are "always open," a complaint is still timely as of that day even if it was delivered to the office after the clerk's regular business hours. e. If the original complaint is mailed to the Clerk's Office rather than sent electronically, the filing of the complaint is ordinarily not considered complete and the action not commenced; instead, the date of commencement of the action is when he U.S. Postal Service actually delivers the complaint to the court.

Serving individuals in foreign countries is governed by Federal Rule 4(f) and refers to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, which has been signed by 79 countries. Under the convention, each contracting state is required to designate a central authority to accept incoming requests for service. A judicial officer who is competent to serve process in the state of origin is permitted to send request for service directly to the central authority of the state where service is to be made. Upon receiving the request, the central authority in the receiving state arranges for service in a manner permitted within the receiving state. Once service is effected, the central authority sends a certificate of service to the judicial officer who made the request. Parties are required to use three standardized forms: a request for service, a summary of the proceedings (similar to a summons), and a certificate of service. According to the U.S. Supreme Court, is service pursuant to Hague Convention mandatory in actions commenced in federal court? a. Yes, according to the U.S. Supreme Court, service abroad using this Convention is mandatory wherever it applies for actions in federal court (unless Congress has provided otherwise). b. No, the plaintiff can use a letter rogatory for service. ​[A request through diplomatic channels for help to complete service in accordance with the receiving country's internal rules and regulations; once the foreign court receives the Letters Rogatory, the court can decide to comply with the request or deny it due to lack of sufficient information, improper format, or failure to produce an adequate reason as to why it's necessary; If the foreign court agrees to grant the request, service is then completed under the local rules of their jurisdiction.]

a. Yes, according to the U.S. Supreme Court, service abroad using this Convention is mandatory wherever it applies for actions in federal court (unless Congress has provided otherwise).

According to Federal Rule 1, how are the Federal Rules of Civil Procedure to be construed, administered, and employed by the courts and the parties to the litigation? a. To determine whether an individual or entity committed an unlawful act and the appropriate punishment. b. To secure the speedy determination of every civil action and proceeding. c. To secure the inexpensive determination of every civil action and proceeding. d. To encourage the parties to bring civil actions to determine disputes between parties rather than resorting to self-help or violence or arbitration.. e. To secure the just determination of every civil action and proceeding.

b. (To secure the speedy determination of every civil action and proceeding.) c. (To secure the inexpensive determination of every civil action and proceeding.) e. (To secure the just determination of every civil action and proceeding.)

TRUE OR FALSE: Now that the Federal Rules of Civil Procedure have abolished separate law and equity courts, the distinction is no longer relevant and one needn't worry about those historical differences; thus, it is a waste of good time to have to learn about forms of action and equity jurisdiction and procedure. a. True; it couldn't have been said better. b. Sorry to say, but it is false.

b. Sorry to say, but it is false.

Assume that a local owner and an out-of-town owner of adjoining properties dispute the location of a boundary line between their respective properties. The out-of-town owner has announced that a crew is coming tomorrow to cut the trees down. The trees are old oak trees. and the adjoining landowner has gone to federal district court to seek a temporary restraining order to stop the out-of-town owner's crew from cutting the trees. Who is authorized to serve the TRO on the defendant? (Recall that to obtain a TRO, a party must convince the judge that the party will suffer immediate irreparable injury unless the order is issued; if the judge is convinced that a temporary restraining order is necessary, the judge may issue the order immediately, without informing the other parties and without holding a hearing and before the complaint and summons are served on the defendant. For purposes of this question you can assume that there is diversity of citizenship and the amount in controversy is met.) a. Any person who is at least 18 years old and not a party to the litigation. b. The United States marshal or deputy marshal. c. Any person specially appointed for that purpose. ​[Although not specified further in the text of Federal Rule 4.1(a) the person appointed will be "presumably a law enforcement officer" according the U.S. Marshal Service website.] d. Any person of suitable age or discretion who does not reside in the plaintiff's household. e. All of the above answers identify persons who are authorized to serve the TRO on the defendant.

b. The United States marshal or deputy marshal. c. Any person specially appointed for that purpose. ​[Although not specified further in the text of Federal Rule 4.1(a) the person appointed will be "presumably a law enforcement officer" according the U.S. Marshal Service website.]

Assume that a company had a dispute over sales commissions with one of its employees. The company fires the employee and plans to sue the former employee to recover customer lists that the employee improperly removed from the company's premises. However, before bringing suit, the former employee moved to a neighboring state. The company's lawyers invite the former employee to the company's headquarters to "discuss settlement of the dispute." The former employee makes a special trip from the employee's home in the neighboring state to the headquarters. When the former employee arrives, an executive of the company announces that "the settlement discussions are "off" and a process server hands the former employee service of process for an action to recover the customer lists. What is the best argument that the former employee can make to establish that service of process was invalid? a. The employee lacks minimum contacts. b. The employee is immune from service of process because of the company's fraud or trickery. c. The employer has waived the right to sue because the employer invited the employee to the settlement discussions. d. None of the above are even plausible arguments.

b. The employee is immune from service of process because of the company's fraud or trickery.

Assume that a company has a dispute over sales commissions with one of its employees; the company filed suit against the employee seeking damages for disparagement based on the employee's statements about the company in a state court in Texas; the employee answered and then properly removed the case to the appropriate U.S. District Court; the employee's answer included a counterclaim for commissions owed to the employee. Is the company required to serve an answer to the employee's counterclaim as required by Federal Rule 7(a)(3) or can the company rely on the following provision in Texas Rule of Civil Procedure 92: "When a counterclaim . . . is served upon a party who has made an appearance in the action, the party so served, in the absence of a responsive pleading, shall be deemed to have pleaded a general denial of the counterclaim . . . ."? a. Even though an action has been removed from state to federal court, the state court rules of pleading still apply; thus, it is safe for the company to rely on the provision in the Texas Rules of Civil Procedure. b. When an action commenced in state court is properly removed to federal court, the Federal Rules of Civil Procedure apply to pleadings or motions after removal; thus, the company must serve an answer to the counterclaim as required by Federal Rule 12(a)(1)(B), which provides that a party must serve an answer to a counterclaim; it would be unsafe to do otherwise because failure to answer is likely to be regarded as requiring parties to respond to allegations made against them. Fed. R. Civ. P. 8(b)(6) ("An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied."). c. No action is necessary because the federal rules generally do not require repleading following removal. d. Answers A and C are both correct.

b. When an action commenced in state court is properly removed to federal court, the Federal Rules of Civil Procedure apply to pleadings or motions after removal; thus, the company must serve an answer to the counterclaim as required by Federal Rule 12(a)(1)(B), which provides that a party must serve an answer to a counterclaim; it would be unsafe to do otherwise because failure to answer is likely to be regarded as requiring parties to respond to allegations made against them. Fed. R. Civ. P. 8(b)(6) ("An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied.").

To which of the following proceedings do the Federal Rules of Civil Procedure apply? a. Federal tax court proceedings ​[The U.S. Tax Court is one of the courts in which taxpayers can bring suit to contest IRS determinations, and it is the primary court in which taxpayers can do so without prepaying any portion of the disputed taxes]. b. The U.S. District Court for the District of Columbia. c. The territorial/insular courts of Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands. d. All of the above described situations are situations where the Federal Rules of Civil procedure apply except proceedings in the federal tax court. e. All of the above described situations are situations where the Federal Rules of Civil procedure apply.

d. (All of the above described situations are situations where the Federal Rules of Civil procedure apply except proceedings in the federal tax court.)

How is a civil action commenced in federal court? a. To commence an action, a plaintiff must file a summons and complaint with the Clerk of Court where the action is brought. b. Litigation is commenced when the claimant issues a "Claim Form" at court. This is a brief document that sets out the basis of the claim. The date of issue starts the "litigation clock" that sets various steps have to be taken within short timescales thereafter. c. Proceedings are commenced by the plaintiff serving the defendant with a writ of summons ("Assignation") setting out the grounds of the plaintiff's claim and summoning the defendant to appear in court on a specific date. A list of evidentiary documents supporting the claim has to be attached to the writ. Counsel for the plaintiff then files an official copy of the served writ with the court. d. A civil action is commenced by filing a complaint with the court.

d. A civil action is commenced by filing a complaint with the court.

For most actions, 28 U.S.C. § 1914 provides that the clerk of each district court shall require the parties instituting any civil action, suit, or proceeding in such court, whether by original process, removal, or otherwise, to pay a filing fee of $350 ​[and an "administrative" fee of $52]. How is this provision carried out in practice? a. Some (but not all) federal courts require that all filing fees be paid prior to a lawsuit being considered commenced. b. If a litigant cannot afford to pay the filing fees, it is possible for the litigant to proceed in forma pauperis ​[a Latin term meaning "in the manner of a pauper" and often referred to as "IFP" actions] without payment of filing fees. c. Pro se ​[Latin for self or "in one's own behalf."] plaintiffs are given special treatment; for example, some courts will consider a lawsuit to be conditionally commenced upon the simultaneous filing of a complaint and a motion to proceed in forma pauperis (provided that if the motion is subsequently denied, the filing fees are promptly paid). d. d All of the above answers reflect how the payment of filing fees is carried out in the federal district courts.All of the above answers reflect how the payment of filing fees is carried out in the federal district courts.

d. All of the above answers reflect how the payment of filing fees is carried out in the federal district courts.

For an individual within a judicial district of the United States, sufficient "tendering" may be accomplished by delivering a copy of the summons and of the complaint to the individual personally (Fed. R. Civ. P. 4(e)(2)(A)). Which of the following might be considered to be sufficient "tendering" of the process to the recipient when the recipient is physically confronted with service but refuses to take personal possession of the service documents? a. Leaving the documents on a nearby table. b. By placing the documents on the floor near the person. c. By slipping the documents through the passenger side's window of the car as the driver (defendant) attempting to roll up the window. d. All of the above are good possibilities.

d. All of the above are good possibilities.

Assume that plaintiff sends a notice and request for waiver of serve prescribed by Federal Rule (4)(d) to the defendant. The defendant does not return the waiver as requested. The plaintiff then has the defendant served with process. However, by the time the defendant is served, the applicable statute of limitations had run. The defendant asserts that the statute of limitations as an affirmative defense in the defendant's answer because the applicable law requires the action to be commenced by personal service of the summons on the defendant within the statutory period. Is this defense good? a. The defense is good because the statute of limitations has run because it requires for tolling that the action be commenced by personal service of process on the defendant within the statutory period, and not simply by the filing of the action with the court within the statutory period. b. This defense is good because Rule 4(d)(4) provides that when the waiver is filed, the action shall proceed as if the summons and complaint had been served at the time of filing the waiver, the statute would clearly run here. Only if the statute is tolled by the defendant=s receipt of notice of commencement or is tolled by filing the action itself would the waiver process seem safe. c. The defense is not good; otherwise, it would be a trap for the unwary. d. Answers A and B above, taken together, provide a good explanation of why the defense is good.

d. Answers A and B above, taken together, provide a good explanation of why the defense is good.

In addition to the methods specifically set out in the Federal Rule 4(h)(1)(B) for serving a corporation, partnership, or unincorporated association, such entities may be served in any manner prescribed by Federal Rule 4(e)(1) for serving an individual. One of those ways set out is in any manner authorized "state law." Which state's law may be used? a. "State law" refers to the law of the State in which the U.S. District Court sits. b. "State law" refers to the law of the State in which service is to be accomplished. c. "State law" refers to where the business entity is incorporated or legally organized. d. Answers A and B are correct. e. Answers A, B, and C are correct.

d. Answers A and B are correct.

Federal Rule 81(c) sets how the Federal Rules of Civil Procedure operate when an action is removed from a state court to a federal district court. (Recall that a defendant in a state court action can file a notice of removal in a federal district court when the plaintiff's action pending in state court fits within a grant of federal subject-matter jurisdiction and the defendant is not a citizen of the state where the state court action is pending.) Which of the following statements about removal are accurate? a. A defendant who has not answered the complaint before removal must answer or present other defenses or objections under these rules within the longest of these periods: (A) 21 days after receiving—through service or otherwise—a copy of the initial pleading stating the claim for relief; (B) 21 days after being served with the summons for an initial pleading on file at the time of service; or (C) 7 days after the notice of removal is filed. b. In a removed action, even if a jury trial has been properly demanded in state court, the party seeking a jury trial in federal court must "renew" that demand to establish the right to a jury trial in federal court. c. For a defendant served with the complaint before removal, state law controls the timeliness of service; however, the 90-day time limit of Federal Rule 4(m) applies for defendants not served with the complaint prior to removal, which is possible in some states where only the summons is served (without the complaint); the 90-day deadline for service is calculated from the date of removal. d. Answers A and C, above, are both correct. e. Answers A, B, and C, above, are all correct.

d. Answers A and C, above, are both correct.

Federal Rule 81 controls the manner in which the Federal Rules of Civil Procedure apply to a variety of contexts and abolishes the use of certain writs at the trial level. Based on the provisions of Federal Rule 81, which of the following describe the scope and effect of the Federal Rules of Civil Procedure? a. The Federal Rules supplement statutory procedures in several situations, including bankruptcy proceedings and proceedings arbitrated under the Federal Arbitration Act (i.e., the Rules generally act as a default provisions when no arbitration rule addresses a procedural issue.) b. Rule 81 abolishes the writ of scire facias (a judicial writ founded on some matter of record and requiring the party proceeded against to show cause why the record should not be enforced, annulled, or vacated). c. Rule 81 abolishes the writ of mandamus at the federal district court level (the use of a judicial writ compelling a government official to do something; however, a writ of mandamus is properly employed by appellate courts to compel a lower court to perform an act that is ministerial in nature and that the court has a clear duty to do under law). d. The Federal Rules of Civil Procedure apply to habeas corpus proceedings (based on a writ inquiring into the lawfulness of the restraint of a person who is imprisoned or detained in another's custody) and quo warranto proceedings (based on a writ used to challenge a person's right to hold a public or corporate office) e. All of the above answers describe the scope and effect of the Federal Rule 81.

e. All of the above answers describe the scope and effect of the Federal Rule 81.

Which of the following are conditions that must be met for an action in federal court to be deemed a "civil action" or are statements accurately describing civil actions in federal court? a. The action must be within federal subject-matter jurisdiction. b. The proceeding must have been actually commenced in a federal court. c. The term civil action encompass all component "claims" and "cases" within the lawsuit. d. A party may join all claims and defenses that previously were deemed to either legal or equitable in nature (assuming their joinder is otherwise permitted by the Federal Rules of Civil Procedure or applicable statutes). e. All of the above answers set forth conditions that must be met for an action in federal court to be deemed a "civil action" or set forth statements accurately describing civil actions in federal court.

e. All of the above answers set forth conditions that must be met for an action in federal court to be deemed a "civil action" or set forth statements accurately describing civil actions in federal court.

Criminal law and civil law differ with respect to how cases are initiated (who may bring charges or file suit), how cases are decided (by a judge or a jury), what kinds of punishment or penalty may be imposed, what standards of proof must be met, and what legal protections may be available to the defendant. Which of the following are likely to be classified as "civil actions"? a. A person seeks compensation for damage caused as a result of another person's conduct based on that person's negligence, intentional wrongdoing, or strict liability. b. A claimant seeks damages resulting from a defamatory statement by another person that causes harm to the claimant's reputation. c. A person seeks compensation based on a misrepresentation of fact that was either intentionally or negligently made. d. A patient seeks damages when a doctor had a professional working relationship with that person and the doctor violated the doctor's duty of care either through the doctor's actions or inaction which directly caused the patient's injuries and losses. e. All of the above are examples of civil actions.

e. All of the above are examples of civil actions.

State law opens up the possibility of additional ways to serve a defendant with process. Which of the following ways might be possible under this "state law" option to serve an individual within a judicial district of the United States that are not specifically authorized by the Federal Rules of Civil Procedure? a. Service by publication. b. Service by email or through social media portals. c. Service by leaving a copy of the summons and complaint at the individual's regular place of business. d. Service by mail. e. All of the above are possibilities under the "state law service option."

e. All of the above are possibilities under the "state law service option."

Which of the following are important consequences and effects that follow from the adoption of Federal Rule 2? a. The forms of action are abolished. b. The separate equity practice of the federal courts is eliminated. c. The Conformity Act no longer superimposes state laws or rules upon the procedure in federal courts. d. The merger of law and equity furnish a single uniform procedure by which a litigant may present a claim in an orderly manner to a court empowered to award whatever relief is appropriate and just; the substantive and remedial principles that applied prior to the advent of the federal rules are not changed. e. All of the above describe consequences and effects of the adoption of Federal Rule 2.

e. All of the above describe consequences and effects of the adoption of Federal Rule 2.

What is a summons and what is service of process? a. A summons is a form prepared by the plaintiff and issued by a court that informs the defendant that the defendant is being sued or the defendant is required to appear in court. A summons may be served by a marshal, sheriff, or some other authorized person, such as the process server. b. A summons is an instrument used to provide notice to a party of civil proceedings and of the opportunity to appear and be heard. A summons informs the defendant that they have a certain number of days to respond to the lawsuit or appear in the court. c. "Service" or "service of process" is the formal delivery of a legal document, such as a complaint or petition, to ensure that the opposing party is aware of the action and is given an opportunity to respond. d. Service of process is an essential step in commencing a civil lawsuit. In fact, service of process is so essential in a lawsuit that, if it is not performed properly, a lawsuit cannot proceed. Service of process is critical because it establishes that the court hearing the lawsuit has jurisdiction over the defendant. e. Although doing it in different ways, all of the above accurately describe what a summons and service of process are.

e. Although doing it in different ways, all of the above accurately describe what a summons and service of process are.

Which of the following, if any, are accurate statements about commencing an action in federal court? a. Service of process is required to commence an action in federal court. b. Even when state law provides a tolling requirement or tolling limitation, Federal Rule 3 controls the calculation when the statute of limitations has been met; in effect, a state-law cause of action can be given a longer life in federal court than it would otherwise have had in the state courts. c. Service of the summons and complaint must be accomplished within 180 days after commencement of an action in federal court unless good cause is shown why service was not accomplished in that period. d. A case that has been removed from state court to a federal court is reconsidered to be "re"-commenced at the time of removal rather than the original commencement date in state court. e. None of the above statements are accurate statements about commencement of actions in federal court.

e. None of the above statements are accurate statements about commencement of actions in federal court.

Why is the date that a lawsuit commences very important (and why is it important that the date of commencement be easily determinable)? a. Diversity is determined at the time that federal court jurisdiction is invoked by a filing in U.S. district court commencing the action (It is on that basis that the state citizenships of the parties established. (This is informally known as the "snapshot rule.") b. The statute of limitations sets maximum period of time after an event when legal action can be taken; in federal court, the date when an action is commenced in federal court on federal claims is easily determined for purposes of the statute of limitations has been met by establishing that an action is commenced when a complaint is filed with the court. c. A defendant in federal court must plead a counterclaim that arises out of the same "transaction or occurrence" as plaintiff's main claim, or it is deemed waived; however, the pleader need not state the claim if when the action was commenced in federal court, the claim was the subject of another "pending" action; Federal Rule 3 makes it easy to determine whether an action was "pending." d. It is important to know when a federal court has authority to act; prior to the commencement of an action in federal court, the federal court lacks authority to act in a dispute; to give the court authority to act a "complaint" has to be filed with the court. e. The "first-to-file rule" is a general principle of case management in the federal system. The thrust of this rule is that, absent compelling circumstances, federal courts will defer to actions previously filed in other federal courts when the parties and issues in the two suits are essentially the same based on the date of commencement of the action. f. All of the above are reasons why the date that a lawsuit commences is very important and that it is easily determined.

f. All of the above are reasons why the date that a lawsuit commences is very important and that it is easily determined.

Which of the following must a summons in a federal civil action contain or do? a. Identify the case (listing the court, the parties, and the name and address of the plaintiff's attorney b. Be directed to the defendant specifically c. Set out the deadline to appear and defend d. Warn the defendant against default that will occur if the defendant fails to appear and defend, which will result in the entry of a default judgment for relief requested in the complaint e. The summons must be issued and signed by the clerk of the court and it must bear the court's seal. f. All of the above are required for a valid summons

f. All of the above are required for a valid summons