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Flashcards in Federal Civil Procedure BlackLetter (Barbri) Deck (26)
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1

Federal jurisdiction based on diversity of citizenship is defined in terms of “complete diversity,” which means:


A Every party must be a citizen of a different state from every other party
B One plaintiff must be a citizen of a different state from one defendant
C No plaintiff may be a citizen of the same state as any defendant
D All plaintiffs must reside outside of the chosen venue

C No plaintiff may be a citizen of the same state as any defendant

For purposes of diversity of citizenship jurisdiction, complete diversity means that no plaintiff may be a citizen of the same state as any defendant . Complete diversity does not require complete diversity among all parties. Thus, stating that every party must be a citizen of a different state from every other party is incorrect. The statement that one plaintiff must be a citizen of a different state from one defendant describes minimal diversity and is incorrect for purposes of diversity of citizenship jurisdiction. (Minimal diversity is all that is constitutionally required, and Congress has granted subject matter jurisdiction based on minimal diversity in some classes of cases such as those falling under the federal interpleader statute. However, Congress has not granted a broad subject matter jurisdiction based on minimal diversity.)
“All plaintiffs must reside outside of the chosen venue” is an incorrect statement of the law.

2

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


A Join her lawsuit with another plaintiff bringing an unrelated claim against the same defendant
B Aggregate only related claims against a single defendant
C Aggregate unrelated claims against several defendants
D Aggregate unrelated claims against a single defendant

D Aggregate unrelated claims against a single defendant

In order to satisfy the amount in controversy requirement, a good faith claim that the amount exceeds $75,000, exclusive of interest and costs of the lawsuit, is required.
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).

3

Select the statement that best describes the Erie doctrine:


A A federal court exercising federal question jurisdiction applies federal substantive law and state procedural law
B A federal court exercising diversity jurisdiction applies state substantive law and federal procedural law
C A federal court exercising diversity jurisdiction applies federal substantive law and state procedural law
D A federal court exercising federal question jurisdiction applies state substantive law and federal procedural law

B A federal court exercising diversity jurisdiction applies state substantive law and federal procedural law

Under the Erie doctrine, a federal court exercising diversity jurisdiction applies state substantive law and federal procedural law. Federal procedural laws are found in federal statutes and the Federal Rules of Civil Procedure. If there is no federal statute or rule on point, the court must determine whether an issue is substantive or procedural. The Erie doctrine does not apply to courts exercising federal question jurisdiction; in those cases, a federal court will apply federal substantive and procedural law.

4

Which of the following defenses may be raised at any time prior to trial or at trial?


A Improper venue
B Failure to state a claim upon which relief can be granted
C Insufficient service of process
D Lack of personal jurisdiction

B Failure to state a claim upon which relief can be granted

Failure to state a claim upon which relief can be granted may be raised at any time prior to trial or at trial. Failure to join a party needed for just adjudication would need to be raised at this time too. Lack of personal jurisdiction, improper venue, and insufficient service of process all must be raised at the time the defendant files a motion or his answer (whichever comes first).

5

Under certain circumstances, a _______ may be issued without notice to the other party.


A Preliminary injunction
B Temporary restraining order
C Summary judgment
D Judgment as a matter of law

B Temporary restraining order

A court may grant, in its discretion, an ex parte temporary restraining order if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition. The other requirements are that the moving party must (i) certify in writing all efforts she made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and (ii) provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security. Preliminary injunctions, summary judgments, and judgments as a matter of law require notice to the other party in order to be issued.

6

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


A The claim is “at law,” and the amount in controversy exceeds $20
B The amount in controversy exceeds $20
C The claim is “at law”
D The amount in controversy exceeds $75,000

A 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.

7

A _______ is a verdict in which the jury finds for the plaintiff or defendant, determines the damages or relief to be given, and answers specific questions of fact.


A General verdict
B Special verdict
C Special verdict with special interrogatories
D General verdict with special interrogatories

D General verdict with special interrogatories

A general verdict with special interrogatories is a verdict in which the jury finds for the plaintiff or defendant, determines the damages or relief to be given, and answers specific questions of fact. In a general verdict, the jury finds for the plaintiff or defendant and determines damages or relief. It is assumed that all essential issues were found in favor of the prevailing party. In a special verdict, the jury receives a series of questions regarding each ultimate fact, then the court makes legal conclusions based on those facts.
There is no verdict called a special verdict with special interrogatories. Because a special verdict involves the jury answering questions regarding the ultimate facts of the case, a special verdict with special interrogatories would be redundant.

8

Summary judgment must be granted if, from the pleadings, affidavits, and discovery materials, it appears that _______.


A The evidence strongly favors one party
B No genuine dispute of material fact exists
C No genuine dispute as to the applicability of law exists
D No genuine dispute of fact exists

B No genuine dispute of material fact exists

The standard for summary judgment is that there is no genuine dispute of material fact. If there is a genuinely disputed material fact (meaning a dispute backed by evidence on both sides of the issue), the case must go to trial. No genuine dispute of fact is incorrect, because only a dispute as to material fact would prevent the issuance of summary judgment. Summary judgment may not be granted if there is a dispute as to any fact. The judge cannot resolve a disputed fact, even if the judge determines that the evidence strongly favors one party. No genuine dispute as to the applicability of law is not the correct standard. Summary judgment may be appropriate even if legal issues are in dispute.

9

A court cannot grant a motion for judgment as a matter of law ("JMOL") until _______ and the court has found that _______.


A The nonmoving party has received notice of the motion; there is no genuine dispute of material fact
B The nonmoving party has received notice of the motion; a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue
C The nonmoving party has been fully heard; there is no genuine dispute of material fact
D The nonmoving party has been fully heard; a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue

D The nonmoving party has been fully heard; a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue

A court cannot grant a motion for judgment as a matter of law ("JMOL") until the nonmoving party has been fully heard and the court has found that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue. Answer choices that include the finding that there is no genuine issue of material fact are incorrect because this is the standard for summary judgment, not JMOL. Answer choices that include the requirement that the nonmoving party has received notice of the motion are incorrect because the nonmoving party must be "fully heard," not just receive notice of the motion.

10

A new trial may be granted when the verdict is:


A Excessive, inadequate, or such that a reasonable jury would not have a legally sufficient basis to come to that verdict
B Excessive, inadequate, or against the weight of the evidence
C Excessive or inadequate only
D Against the weight of the evidence only

B 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.

11

For claim preclusion to apply, it must be shown that:


A (i) The earlier judgment is satisfied; (ii) the cases are brought by the same claimant against the same defendant; and (iii) the same cause of action is involved in the later lawsuit
B (i) The earlier judgment is a valid, final judgment on the merits; (ii) the cases are brought by the same claimant against the same defendant; and (iii) the earlier judgment has been satisfied
C (i) The earlier judgment is a valid, final judgment on the merits; (ii) the same cause of action is involved in the later lawsuit; and (iii) the earlier judgment has been satisfied
D (i) The earlier judgment is a valid, final judgment on the merits; (ii) the cases are brought by the same claimant against the same defendant; and (iii) the same cause of action is involved in the later lawsuit

D (i) The earlier judgment is a valid, final judgment on the merits; (ii) the cases are brought by the same claimant against the same defendant; and (iii) the same cause of action is involved in the later lawsuit

For res judicata (claim preclusion) to apply, all of the following criteria must be met: (i) the earlier judgment is a valid, final judgment on the merits; (ii) the cases are brought by the same claimant against the same defendant; and (iii) the same cause of action is involved in the later lawsuit. The answer choices including as a requirement that the earlier judgment be satisfied are incorrect; satisfaction of the earlier judgment is not required.

12

If a judgment was entered against a defendant over whom the court had personal jurisdiction, but the defendant did not have knowledge of the pendency of the action, under what circumstances may the court relieve the defendant from the judgment?


A The defendant shows both reasons justifying the relief and that innocent third persons will not be prejudiced
B The defendant shows only reasons justifying the relief
C The defendant shows both that there is newly discovered evidence that was not discovered at the time of the trial and that innocent third persons will not be prejudiced
D The defendant shows only that there is newly discovered evidence that was not discovered at the time of the trial

A The defendant shows both reasons justifying the relief and that innocent third persons will not be prejudiced

To be relieved from a judgment where the court had personal jurisdiction but the defendant did not have knowledge of the pendency of the claim, the defendant must show BOTH reasons justifying the relief AND that innocent third persons will not be prejudiced. Showing only reasons justifying the relief is not sufficient to be relieved of the judgment. Showing that there is newly discovered evidence that was not discovered at the time of trial is incorrect because (a) the defendant is seeking relief based on lack of knowledge of the action itself, not new evidence, and (b) the standard for relief from a judgment based on new evidence is that, by due diligence, such new evidence could not have been discovered in time to move for a new trial, not that it was just not discovered.

13

Which of the following statements is true about the appellate jurisdiction of the United States Supreme Court?


A The Supreme Court has discretion to hear appeals from the federal appellate courts but has no discretion to hear cases from any state courts.
B The Supreme Court has discretion to hear some appeals from state courts and some appeals directly from federal district courts in certain cases.
C The Supreme Court has discretion to hear appeals from some state courts but has no discretion to hear any cases directly from the federal district
courts.
D The Supreme Court has discretion to hear appeals from the federal appellate courts but has no discretion to hear any cases directly from the federal district courts.

B The Supreme Court has discretion to hear some appeals from state courts and some appeals directly from federal district courts in certain cases.

The Supreme Court has discretion to hear some appeals from state courts and some appeals directly from federal district courts in certain cases. The Supreme Court may hear on direct appeal any order granting or denying an injunction in any proceeding required to be heard by a three-judge district court panels. It also may hear by discretionary writ of certiorari final judgments of the highest court of a state if: (i) the validity of a treaty or federal statute is drawn into question; (ii) the validity of a state statute is drawn into question on the ground that it is repugnant to the federal Constitution or to a treaty or federal statute; or (iii) any title, right, privilege, or immunity is claimed under the federal Constitution or treaty or federal statute. The choices indicating that the Supreme Court has no discretion to hear any cases directly from the federal district courts is incorrect because direct appeal is available from decisions of three-judge district court panels. The choices indicating that the Supreme Court has no discretion to hear cases from any state courts is incorrect because the court has discretion to hear cases from the highest courts of the states as discussed above.

14

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


A A federal court generally must recognize the judgments of a state court, but a state court generally need not recognize the judgments of a sister state
B A state court generally does not have to recognize the judgments of either a sister state or the federal courts
C A state court generally must recognize the judgments of a sister state and federal courts generally must recognize judgments of state courts
D A state court generally must recognize the judgments of a sister state, but a federal court generally does not have to recognize the judgments of a state court

C 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.

15

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:


A Only that he purposefully availed himself of that forum
B That he purposefully availed himself of that forum and it was foreseeable that his activities would make him amenable to suit in the forum
C That he purposefully availed himself of that forum or it was foreseeable that his activities would make him amenable to suit in the forum
D Only that it was foreseeable that his activities would make him amenable to suit in the forum

B 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.

16

Venue is _______ in a civil action in a _______.

A Improper; judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located
B Improper; judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated
C Proper; judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located
D Proper; judicial district in which any defendant resides, regardless of whether all defendants are residents of the state in which the district is located

C Proper; judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located

Venue in civil actions is proper in a judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located. Venue is also proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated. Also if there is no district anywhere in the United States which satisfies the first two requirements, venue is proper in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. Venue is not necessarily proper in a judicial district in which any defendant resides, if the defendants are not all residents of the same state in which the district is located.

17

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


A Transfer is permitted to another district where the action might have been brought, or to which all parties have consented
B Transfer is permitted, but only to a district to which all parties have consented
C Transfer is not permitted where the original venue is proper
D Transfer is permitted, but only to another district where the action might have been brought

A 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.

18

Which of the following statements concerning the disclosures required by the federal discovery rules is correct?


A The initial disclosures required by the discovery rules are waived if the other party refuses to make its disclosures
B A party is obliged to make initial disclosures only after it has completed its investigation
C Before making initial disclosures, a party must make a reasonable inquiry into the facts of the case
D A party need not disclose any information to the other party unless a discovery request has been made

C Before making initial disclosures, a party must make a reasonable inquiry into the facts of the case

Under Federal Rule 26, before making the required initial disclosures, a party must make a reasonable inquiry into the facts of the case. Federal Rule 26 requires parties to disclose certain information to other parties without waiting for a discovery request. Rule 26 requires a party to disclose all information then reasonably available that is not privileged or protected as work product regardless of whether the party’s initial investigation is complete or whether the other party refuses (or otherwise fails) to make the disclosures.

19

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:


A If relevant to the litigation
B If it is not admissible at trial
C If made in anticipation of litigation
D Under any circumstances

C If made in anticipation of litigation

Generally, 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, unless the party requesting discovery can show substantial need and undue hardship if disclosure is not ordered. It is not the case that work product is not discoverable under any circumstances. Work product that was not made in anticipation of the litigation is obtainable. Also, work product that is relevant to the litigation may be discoverable if the work product was not made in anticipation of the litigation (or if it is not a document or tangible thing).

20

A condo owner, a citizen of State A, hired an electrician, a citizen of State A, and a gas worker, a citizen of State B, to fix the wiring in his condo and install a new gas stove. Unfortunately, the condo burned down while they were working on it. The condo owner sued the gas worker for negligence, seeking $100,000. The gas worker files a motion to dismiss the case for failure to join the electrician, alleging that he contributed to the fire.

The court should:


A Deny the motion and order that the electrician be joined as a permissive co-defendant.
B Deny the motion and order that the electrician be joined as an indispensable party.
C Deny the motion, because the electrician is not a necessary party.
D Grant the motion, because the electrician is a necessary party but his joinder would destroy complete diversity.

C Deny the motion, because the electrician is not a necessary party.

The court should deny the motion. The typical way in which compulsory joinder is raised is by a Rule 12(b) motion to dismiss for failure to join an indispensable party. To determine if the party is truly indispensable, the first step is to determine whether the absentee should be joined. One reason why an absent party should be joined is when complete relief cannot otherwise be accorded among parties. However, under the tort law in a number of states, any single joint tortfeasor may be liable for the entire wrong, making complete relief for the plaintiff possible. Another reason to join an absent party is if he has an interest in the subject matter of the suit such that, without his presence, his ability to protect his interest will be impaired or the existing parties will be subject to a substantial risk of incurring multiple or inconsistent obligations. Here, the electrician has no interest to protect. Even if the condo owner were to sue the electrician later, the electrician would not be precluded from raising any defenses that the gas worker raised, because the electrician was not a party to the initial case and therefore issue preclusion would not apply to him. Accordingly, the electrician is not a necessary party. (D) is therefore incorrect. It is true that, if the electrician were joined, there would be no diversity, and (D) states the outcome for a case if the electrician were truly an indispensable party; however, as explained above, that is not the case here. (B) is also incorrect in suggesting that if someone fits within the "indispensable party" category, subject matter jurisdiction is proper. The supplemental jurisdiction statute specifically prohibits the use of supplemental jurisdiction by plaintiffs against persons made parties under Rule 19. It is also contrary to Rule 19(b), which provides for an analysis of what a court should do if there is a Rule 19(a) party who cannot be joined because of jurisdiction. (A) is incorrect. Rule 20 permits joinder of additional co-plaintiffs or co-defendants when a claim relates to the same occurrence or transaction and there is a question of fact or law in common. However, permissive joinder merely permits the plaintiff to make this choice and does not permit the court to impose a party on the plaintiff.

21

A plaintiff sued an auto manufacturer for negligence after a car accident involving the plaintiff's car that was made by the auto manufacturer. Sixty days after service of the complaint and 40 days after service of the manufacturer's answer that contained no counterclaim, the plaintiff filed a motion seeking to file an amended complaint adding a claim for strict products liability against the auto manufacturer stemming from the same incident. The statute of limitations for strict products liability claims expired one week before the motion was filed.

How should the court rule on the plaintiff's motion?


A Grant the motion, because every party is entitled to amend once as a matter of course.

B Grant the motion, because the amended complaint relates back.

C Deny the motion, because, while the motion is timely, the proposed claim is futile because the statute of limitations has run.

D Deny the motion, because it is not timely.

B Grant the motion, because the amended complaint relates back.

The court should grant the motion. Federal Rule of Civil Procedure 15 states that leave of court (to grant motions to amend) is to be "freely given when justice so requires." The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice. Additionally, for statute of limitations purposes, proposed claims may be considered to "relate back" to the date of the original pleading in which the claim was made under Rule 15(c). That is critical here because, although the statute of limitations for the proposed products liability claim had expired at the time the motion was made, the amended complaint asserting a products liability claim relates back to the original filing because that claim stems from the same facts alleged in the original complaint, and the statute of limitations had not expired at the time of the original filing. (A) is incorrect because a plaintiff may amend the complaint once as a matter of course (i.e., without court intervention) not later than 21 days after service of the auto manufacturer's answer. Here, 40 days have passed since the auto manufacturer filed its answer, so amending as a matter of course is not permitted. (C) is incorrect. Although the proposed claim would be futile if filed in an original complaint, here, because the claim can relate back to a complaint filed at a time when the proposed claim was still viable, the proposed claim is not considered futile. (D) is incorrect by suggesting that the motion is not timely. Although plaintiff can no longer amend as a matter of course, there is no absolute date pursuant to which a motion to amend is untimely.

22

An attorney in one state represented a plaintiff for personal injuries sustained due to the negligence of the defendant, which occurred on January 20. The statute of limitations for the plaintiff's cause of action is governed by the law of a different state. That statute of limitations is only three months. In other states, the statute of limitations for similar causes of action ranges from two years to five years; in the attorney's home state it is three years. The plaintiff first went to see the attorney on June 15, after the statute of limitations had expired. The attorney, based on his experience in other states, believed that the case was well within the statute of limitations. He drafted a complaint, signed it, and filed it in federal court on June 20. The case was immediately dismissed based on the fact that the statute of limitations had expired.

May the attorney be sanctioned?


A No, because he did not know that the plaintiff's case was not warranted by existing law.
B No, because he could have argued that the statute of limitations should be reversed.
C Yes, because the attorney's signature makes him strictly liable for any defects in the complaint.
D Yes, because he should have known that the plaintiff's case was not warranted by existing law.

D Yes, because he should have known that the plaintiff's case was not warranted by existing law.

The attorney may be sanctioned. In signing a pleading, the attorney represents, among other things, that he has made a reasonable inquiry into the factual and legal grounds for the pleadings. Here, had the attorney performed any sort of research into the matter, he would have discovered the unusually short statute of limitations period and that, as a result, the plaintiff did not have a valid cause of action. Thus, the attorney violated Federal Rule 11, and he may be sanctioned. (A) is incorrect because the standard is an objective, not subjective, standard. (B) is incorrect because statutes of limitations are made by the legislature, and the probability of a judicial overturn is nil. Thus, a good faith argument that the statute of limitations should be overturned is impossible to make. (C) is incorrect because a signature alone is insufficient for sanctions. There must be some objective misconduct on the part of the attorney or client.

23

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?

A Yes, because judgments are enforceable as soon as they have been entered.
B Yes, because judgments are enforceable during pendency of post-trial motions unless the court otherwise orders.
C No, because judgments are not enforceable until 28 days after entry.
D No, because judgments cannot be enforced while a post-trial motion is pending.

B 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 during pendency of post-trial motions 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. (D) is therefore incorrect. (A) and (C) are incorrect because execution on judgments is not allowed for 14 days after entry except in the case of injunctions or receiverships, which are immediately enforceable unless otherwise ordered by the court.

24

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?

A The college student did not take actions to purposely avail herself of State B simply by driving through State B.
B 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.
C The interstate judicial system's interest in obtaining the most efficient resolution of the controversy is violated by requiring the college student to defend the action in the forum state.
D State B is not the proper venue to file this claim.

B 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) is wrong because, to establish the contacts prong of the minimum contacts test, the defendant's contact with the forum state must result in purposeful availment of the state, meaning the defendant took actions that were purposely directed toward the forum state and from which the defendant derived the benefits and protections of the state's laws, such as using the roads in the state. Here, driving through State B was sufficient because it was a purposeful activity and she was protected by State B's police and traffic laws while doing so. (C) is wrong because, although considering the interest in obtaining the most efficient resolution of the controversy is one of the factors the Supreme Court listed in assessing the fairness prong, it is inapplicable to the facts. Here, litigation in either State B or State A would likely be equally efficient. (D) is wrong because State B clearly is a proper venue, as it is the judicial district where the claim arose. Moreover, the question stated that the motion to dismiss was based on lack of personal jurisdiction, not lack of venue.

25

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?

A Yes, because a defendant may 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 later.

B Yes, because the lack of personal jurisdiction defense can be raised at any time, even for the first time on appeal.

C 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.

D No, because a lack of personal jurisdiction defense can only be raised in an answer or it is waived, and the defendant did not submit an answer.

C 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. (B) is wrong because it also misstates the rule for personal jurisdiction. This would be the correct answer if the motion to dismiss were based on lack of subject matter jurisdiction, but this motion is based on lack of personal jurisdiction. (D) is wrong because it also misstates the law, as set forth above.

26

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?

A Grant the motion, because applying the federal rule may change the outcome of the case.
B Grant the motion, because, when a federal court has diversity jurisdiction, it is required to apply the substantive law of the state in which it is sitting.
C 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.
D Deny the motion, because the Supreme Court's balancing factors indicate that federal law should apply.

C 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. (A) is wrong because it states the wrong conclusion, and it incorrectly cites the "outcome determinative" test. This is the test that may be applied when there is no federal procedure law on point, and it is unclear whether the state matter is substantive or procedural. As stated above, there is a federal procedural rule on point. Therefore, this test does not apply. Similarly, (D) is wrong because it is referring to the balance of interests test, which is another test that may be applied when there is no federal procedural law on point, and it is unclear whether the state matter is substantive or procedural. This test is not applicable here, however, because there is a federal procedural rule on point. (B) is wrong because, although it is a true statement of law that a federal court with diversity jurisdiction is required to apply the substantive law of the state in which it is sitting, the requirements for a jury verdict is a procedural rule, not a substantive rule. Therefore, as set forth above, the federal procedural rule governs.