issues Flashcards
(34 cards)
What is a sneaky Plaintiff for purposes of Supplemental Jurisdiction
A sneaky P is a P who tries to circumvent the limits of diversity jurisdiction. If a piggy back claim is brought in by the P who is trying to sneak in a claim against D under rules 14 (third-party Ps) , 19 (required joinder) , 20 (permissive joinder), or 24 (intervention) , Supplemental Jurisdiction is not available for these claims.
T or F If a federal statute does not provide a federal remedy for a violation, there is no federal jurisdiction (because allowing such jurisdiction would go against Congress’s decision not to create a federal cause of action).
True
Claims that do not provide subject-matter jurisdiction may be combined with appropriate claims through the court’s supplemental jurisdiction provided they arise out of the same case or controversy [28 U.S.C. Sec. 1367]. However, there is an important exception. explain
If the primary claim is in federal court solely based on diversity jurisdiction and the secondary claim is a claim made by the plaintiff against parties other than the diverse defendant (through joinder, impleader, or intervention), if the secondary claim fails to meet complete diversity and amount in controversy requirements, the secondary claim cannot be heard in federal court.
The amount in controversy can be aggregated even if the claims are unrelated, so long as they are:
asserted by the same plaintiff against the same defendant.
For all civil actions brought in federal court, venue is proper where:
1) the district where any defendant resides, provided that all defendants are located in the same state;
2) the district where a substantial portion of events occurred; or
3) the district where any defendant is subject to personal jurisdiction
A defendant who is a citizen of the state where the case is brought originally may not remove a case, even if the case could have been brought originally in federal court, if the case if founded solely on and the defendant
defendant is a citizen of the state where the case is brought.
T or F While it is true that a defense based on a federal statute is insufficient grounds for removal, again a case that should have originally been brought pursuant to a federal statute is removable
True
An attorney violates Federal Rule of Civil Procedure 11 when he signs a pleading without having conducted a reasonable inquiry into whether the pleading is:
What does an attorney’s signature on a pleading certify?
frivolous, legally unreasonable, or without factual foundation.
An attorney’s signature on a pleading certifies that the pleading is supported by such reasonable inquiry.
Under Erie, state law applies if it is a law that deals with the substantive rights of state citizens, and federal courts will use federal, not state, procedural rules. The Erie doctrine applies only where the following are both present:
1) the court has subject-matter jurisdiction over a case, based on diversity or supplemental jurisdiction; and
(2) the state law that would apply conflicts with the federal rule, statute, doctrine, or procedure at issue.
In opposing a motion for summary judgment, a plaintiff is not permitted to rely on evidence that
no rational fact finder would find sufficient to establish the element.
A dismissal for failure to prosecute is a dismissal with/without prejudice, unless the dismissal order states otherwise.
Is failure to prosecute generally a judgment on the merits? if so why?
with prejudice
Yes, it is a judgment on the merits because it is a dismissal with prejudice.
A defendant must assert the defense of lack of personal jurisdiction in a motion to dismiss or an answer, or the defense will be ________.
Waived
T or F A defendant waives an affirmative defense if he does not raise it in his first responsive pleading.
Give an example
True
example: waives contributory negligence if not raised in first responsive pleading.
Generally, an appellate court will not review errors that are alleged to have occurred at the trial court level unless those errors are on the record. What does this mean?
That means that if the appellant did not raise or object to an error at the time the trial court had an opportunity to correct it, the issue is unreviewable.
T or F A pleading may make inconsistent claims or defenses. The court will allow inconsistent pleadings to be determined by the trier of facts.
true
A lawyer may ask the court to excuse any juror for cause. There are three categories for such challenges:
(1) general disqualification (such as a felony conviction or some other inherent disqualification);
(2) implied bias (the attorney believes the juror may be biased); and
(3) actual bias (the juror indicates during voir dire that he or she would decide the case based on predetermined beliefs or values).
An alien who is a permanent resident of the United States is considered to be a citizen of
citizen of the district in which he resides
A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if
the party claims an interest relating to the subject of the action, and an adjudication without the party may:
(a) in the party’s absence, the court cannot grant complete relief among existing parties; or
(b) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.
Within 28 days after the entry of judgment, a party who has timely moved for judgment as a matter of law (JMOL) may serve a motion to set aside the verdict and any judgment entered on the verdict [Fed. R. Civ. P. 50(b)]. However, the court may not entertain a renewed motion for JMOL unless
unless a motion for JMOL was made during trial.
T or F There is no Seventh Amendment right to a jury trial in an equitable action.
True
Under the probate exception, federal courts typically will not exercise jurisdiction over probate matters such as the validity of a will and the administration of an estate even when the requirements for diversity jurisdiction are met. Why is this?
The exception is intended to preserve state control over wills and estates.
a plaintiff may voluntarily dismiss an action by filing a notice of dismissal at any time prior to
service of an adverse party’s answer or motion for summary judgment.
T or F If a party has expressly demanded a jury trial in accordance with state law prior to the case being removed to federal court, the demand need not be renewed after removal.
True
Where a defendant removes a case based on __________ jurisdiction, removal will not be allowed if the defendant is a resident of the forum state,
diversity jurisdiction
