MBE Civ Pro

Question 1

Federal Rule of Civil Procedure (FRCP) 13(g) allows a party to make a CROSSCLAIM against a CO-PARTY on the same side of an already-existing claim.

A proper crossclaim must:

Answer 1

1) have arisen out of the SAME TRANSACTION or OCCURRENCE as the ORIGINAL CLAIM; (common nucleus of operative fact)

AND

2) Ask for actual relief from the co-party

*Court must have Subject-Matter jurisdiction + It must be a common nucleus of operative fact… Subject-Matter jurisdiction alone (e.g. the cross-claim arises out of Federal Law–> Federal Question Jx –> Is NOT enough to add the cross-claim)

Question 2

A man from State A sued two mortgage brokers, both citizens of State A, in federal district court in State A. The man’s complaint alleged that the brokers failed to make disclosures required by an applicable federal lending law.

The first broker filed an answer and a crossclaim against the second broker. The crossclaim alleged that the second broker underpaid him in violation of federal labor laws. The first broker is seeking $150,000 in damages. The second broker filed a motion to dismiss the first broker’s crossclaim.

Should the court grant the second broker’s motion to dismiss the crossclaim?

Answer 2

No –> Crossclaims need supplemental jx –> No common nucleus of operative facts (doesn’t arise out of same transaction/occurrence as the original act) –> Can’t be added

Question 3

A claim arises under State law in a Federal court, with no Diversity Jx, and the case requires the Federal Court to answer a hypothetical questions as to Federal Law (e.g. Federal Patent Law and a Patent’s validity in a State law Malpractice claim)

Is there subject-matter jurisdiction?

Answer 3

No. The claim does not sufficiently raise a substantial, disputed question of federal law to support federal jx

An “embedded federal issue” is either:

(i) a federal law issue that will be central to determining whether a DEFENSE asserted or expected to be asserted by the defendant is valid;

OR

(ii) a federal law issue whose RESOLUTION will help determine the validity of the plaintiff’s state law claim, even though the direct source of the plaintiff’s claim is state law

To determine if there is an embedded federal issue, courts consider whether:

(i) the embedded federal issue will be necessarily raised in the federal case;

(ii) the federal issue will be actually disputed in the case;

(iii) the federal issue embedded is substantial;
AND

(iv) allowing this exception will not disrupt the federal-state balance of judicial decision-making.

Question 4

What are (3) types of Personal Jurisdiction?

Answer 4

(1) In personam jurisdiction (over the person)
(2) In rem jurisdiction (thing being litigated is in the state) (e.g. the house in dispute)
(3) Quasi-in-rem jurisdiction (a thing is in the state) (e.g. a bank account)

Question 5

What is the due process requirement for in personam jurisdiction?

Answer 5

Due Process requirements are met if there are SUFFICIENT MINIMUM CONTACTS with the FORUM STATE such that maintenance of the action in the State does NOT OFFEND traditional notions of FAIR PLAY and SUBSTANTIAL JUSTICE

Question 6

When must a party be joined as a COMPULSORY joinder under Rule 19?

Answer 6

“When the Compulsion doesn’t Destroy SMJ… Relief is so-so… and Interests are Impaired…”

If person a subject to service of process joinder would NOT destroy SMJx or venue, they MUST be joined if:

(i) Complete relief CANNOT be provided to existing parties w/o that person;

(ii) Disposition in the ABSENCE of the person MAY IMPAIR the person’s ability to PROTECT his interest;

OR

(iii) The person’s ABSENCE would leave existing parties subject to a SUBSTANTIAL RISK of MULTIPLE OR INCONSISTENT obligations

Question 7

When is notice NOT required for a TEMPORARY restraining order (TRO)?

Answer 7

• if movant can establish–in affidavit or verified complaint–that IMMEDIATE + IRREPARABLE HARM will occur if relief not given prior to hearing adverse party’s opposition;

OR

– movant’s attorney can CERTIFY IN WRITING efforts made to give notice and why it should not be required

Question 8

When can a party amend?

Answer 8

“To Amend –> 21 serves or 21 RpMs””

FRCP 15(a)

• Once as of RIGHT, within 21 days (after serving) if NO responsive pleading is required;

– if responsive pleading is required, within 21 days of service of the responsive pleading, or within 21 days of service of a 12(b) motion, whichever is EARLIER

If you ALREADY AMENDED ONCE –> You need leave of court
(Leave of court should be given freely whenever justice so requires)

Question 9

How may an individual within the U.S. be served?

Answer 9

“If you wanna serve, directly serve SC, or on the D or DA”

Service within the STATE which the federal district court SITS

1) By directly serving the SUMMONS AND COMPLAINT on the defendant;

2) By leaving the SUMMONS AND COMPLAINT at the Defendant’s usual place of abode (home) w/ someone of SUITABLE AGE who resides therein;

OR

3) Delivering SUMMONS AND COMPLAINT to an agent appointed by the DEFENDANT or otherwise AUTHORIZED BY LAW to receive service

Question 10

Impleader claims are

Answer 10

claims that are made by a DEFENDING party against a NONPARTY for ALL OR PART of the DEFENDING PARTY’s liability on an ORIGINAL claim

Question 11

What are the (3) types of class actions?

Answer 11

“RFC” –> “Right F-ing Classes”

(1) Risk of Prejudice: The class is maintainable if the prosecution of separate actions would create the risk that CLASS OPPONENT would become subject to INCOMPATIBLE standards of conduct resulting from INCONSISTENT adjudications,

OR

if prosecution of the claims through separate actions would IMPAIR CLASS MEMBERS’ INTERESTS

(2) Final Equitable Relief: A class seeking FINAL INJUNCTIVE/or DECLARATORY relief may be certified if the class shares a GENERAL CLAIM against the opposing party

(3) Common Legal or Factual Questions: A class can be certified if QUESTIONS OF LAW OR FACT that are common to the CLASS members PREDOMINATE over any Qs affecting only INDIVIDUAL members, + a class action is the SUPERIROR method for bringing about a FAIR and EFFICIENT adjudication of the controversy

Question 12

How much time does a party have to respond to interrogatories?

Answer 12

“30 DAYS TO GO ROGUE”

within 30 days after being served w/ the ROGS

Note: The court may order or the parties may stipulate to a shorter or longer time.

Question 13

What are the three types of jury verdicts?

Answer 13

1) General Verdict: decision by jury on who who wins, and if its the plaintiff, then the amount of damages

2) General Verdict w/ ROGS = (General Verdict + a Special Verdict) – makes sure the jury INDEPENDENTLY considered the MATERIAL FACTS in the case to arrive at the VERDICT

3) Special Verdict: WRITTEN finding by the jury on each issue of ULTIMATE FACT. Courts gives written questions to the jury as to each ultimate fact of the case + asks the jury to make a finding on each fact

Question 14

Discuss aggregation of claims for amount-in-controversy purposes

Answer 14

If aggregating claims in a case involving one plaintiff against one defendant, for purposes of diversity, the amount in controversy is the total amount of the plaintiff’s claims

Question 15

What are the three types of mandatory disclosures?

Answer 15

Rule 26(a) requires the parties to make:

1) INITIAL disclosures;

2) Disclosures of EXPERT TESTIMONY 90 days before trial;

3) PRETRIAL disclosures 30 days before trial

Question 16

What # of preemptory challenges does each party get?

Answer 16

3/each party for preemptory challenges (no reason needed)

Unlimited # for challenges for cause

Question 17

When can a party file a renewed motion for judgment as a matter of law?

Answer 17

1) No later than 28 days AFTER JUDGMENT ENTERED

2) *But if based on a jury issue not decided by verdict, no later than 28 days AFTER Jury’s DISCHARGED

Question 18

When is a default and default judgment entered against a party?

Answer 18

– Default occurs when the opposing party has failed to plead/respond/reply/or take action in the case, and it is proven by affidavit or otherwise –> Court clerk MUST enter the default;

– Default judgment can be requested by Plaintiff after a Default is entered, court clerk can enter it if the relief sought is a certain or computational amount and the opposing party is not a minor or incompetent… or otherwise request is by the COURT itself

Question 19

What interlocutory orders are immediately appealable?

Answer 19

In Certain Cases An Appeal Can Be Made Prematurely

Injunction (grant/denial)
Class action certification
Certification by district court
Admiralty law
Appointment of Receiver
Collateral-order doctrine
Bankruptcy (certain orders)
Mandamus (petition for writ)
Patent-infringement order (only accounting left)

Question 20

What is the standard of review used by appellate courts for legal rulings?

Answer 20

In general, appellate review of legal rulings is de novo (i.e., without deference to the trial court’s legal rulings)

Question 21

If a case starts out as not removable, but later becomes removable, what is the timeframe for removing?

Answer 21

Defendant has 30 DAYS to file NOTICE OF REMOVAL once he/she gets a copy of an amended pleading/ motion/order/or other paper from which it may first be ascertained that the case is now removable

Question 22

What are the two ways in which a defendant can consent to in personam jurisdiction?

Answer 22

1. Express consent: defendant agrees in advance to the jx if a lawsuit is brought by the plaintiff, or stipulates to PJx once action is brought
2. Implied consent: through conduct, such as filing a counterclaim or driving a vehicle within a state

Question 23

What are the prerequisites to obtaining any sanctions/filing a Motion for Sanctions under Rule 37?

Answer 23

Need to Attempt to obtain evidence from the Party first w/o a court order and THEN make a motion to compel

THEN you can file the Motion for Sanctions

Question 24

A federal court may assert SUPPLEMENTAL Jx over a counterclaim that does not satisfy the jurisdictional amount when the counterclaim is

Answer 24

Compulsory
(arises out of the same transaction/occurrence as the original claim–common nucleus of operative facts)

A PERMISSIVE counterclaim does not qualify for SUPPLEMENTAL Jx and therefore must satisfy the 1) Jx amount (>$75k) and 2) complete diversity in a diversity action

Question 25

(In a diversity jx action) A PERMISSIVE counterclaim does not qualify for SUPPLEMENTAL Jx and therefore must satisfy the

Answer 25

1) jurisdictional amount and 2) complete diversity

Question 26

When a cause of action arises out of or closely relates to a defendant's contact with the forum state, jx may be warranted over that action even if that contact is the defendant's only contact with the forum state This type of jurisdiction is referred to as

Answer 26

"Specific Personal Jurisdiction"

Question 27

“General personal jurisdiction” requires that a defendant be domiciled in the state or have continuous and systematic contacts with the forum state. A person having one limited contact within a State (e.g. for the purpose of negotiating and signing a contract there), would not be subject to general personal jurisdiction in that State. But would be under

Answer 27

"Specific Personal Jurisdiction" --> when cause of action arises out of or closes relates to a defendant's contact w/ forum state

Question 28

In general, venue in a federal civil action is proper in only one of the following judicial districts:

Answer 28

(i) where any defendant resides, if all defendants reside in the same STATE in which the district is located; OR (ii) where “substantial part of the EVENTS OR OMISSIONS” on which the claim is based OCCURRED, or where a “substantial part of the PROPERTY” that is the subject of the action is LOCATED

Question 29

Under § 1441(a), An action may be removed to the FEDERAL court in the DISTRICT where

Answer 29

the STATE ACTION is pending, That removal statute determines venue, regardless of whether venue would have been proper under the venue statute (§ 1391) if plaintiff had originally brought the action in that federal district court

Question 30

In a DIVERSITY case on a STATE LAW claim, MAY the FEDERAL court properly use its power to assess attorney’s fees as a sanction for a defendant’s bad-faith conduct during the litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to a successful party?

Answer 30

Yes. Federal court has inherent power to do so if defendant acted in BAD-FAITH.

Question 31

If conflict between state & federal law on an issue before the court, and there's no federal statute or rule on point, then the court must determine whether federal common law, rather than state law, should be applied In making this determination w/ respect to federal common law, the district court will ask whether

Answer 31

the failure to apply state law will lead to different outcomes in state and federal court If the answer is yes, then the court will apply state law, unless affirmative countervailing federal interests are at stake that warrant application of federal law *SCOTUS has also recognized the application of federal common law when a “uniquely federal interest” is at stake + a significant conflict exists between that interest and the operation of state law

Question 32

True or False: In conflicts between State and Federal law, regardless of a federal statute addressing the issue, SCOTUS has also recognized the application of federal common law when a “uniquely federal interest” is at stake + a significant conflict exists between that interest and the operation of state law

Answer 32

TRUE. E.g. defense contractor liability for private contractors who are in contracts w/ the U.S. Military for defense weapons being subject to a products liability claim

Question 33

When a defendant files a MTD 12(b) for failure to state a claim upon which relief can be granted AND ATTACHES materials OUTSIDE the pleadings to the motion, the court must

Answer 33

treat the motion as a SUMMARY JUDGMENT motion IF the court CONSIDERS SUCH materials in reaching its decision on the motion

Question 34

If a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material, then the court, upon motion or upon its OWN INITIATIVE, may

Answer 34

order that such defense or material be stricken (Motion to Strike) (e.g. . a statement concerning the value of a plaintiff's automobile when the complaint only seeks to recover damages for PERSONAL injuries --> the statement would be immaterial)

Question 35

For Federal STATUTORY INTERPLEADER, diversity jx is met if

Answer 35

-- any 2 adverse CLAIMANTS are citizens of different states (*not the stakeholder) -- amount in controversy: property at issue must merely be $500 or more in value, (no >$75k requirement) *The stakeholder must be diverse from Claimants in a Federal interpleader action, not a Federal STATUTORY interpleader action

Question 36

If a party files a CLAIM, a COUNTERCLAIM, or a CROSS-CLAIM against another party, the second party must file any claim that

Answer 36

that party has against the first party that arises out of the S/T/O as the first party’s claim The first defendant is an opposing party with respect to this mandatory claim; accordingly, the second defendant’s claim is a *COMPULSORY COUNTERCLAIM While all cross-claims are permissive, the second defendant's claim is a counterclaim, not a cross-claim (the defendant responding to the defendant who filed a cross-claim against him)

Question 37

An illustrator filed an action in federal district court against a competitor, alleging that the competitor had used one of the illustrator’s designs without permission in violation of federal copyright law. A pretrial conference was scheduled for the following month. On the scheduled date, the illustrator failed to attend the pretrial conference, and he failed to notify the court or the competitor. He later informed the judge that his absence was due to a family emergency. The judge then issued an order requiring both parties to notify the judge by telephone at any time prior to the conference if they could not appear. On the date of the re-scheduled pretrial conference, the illustrator again failed to appear as he had to deal with another family emergency. In his haste, the illustrator forgot to notify the judge by telephone. Due to his frustration with the illustrator’s conduct, the judge dismissed the case. Was dismissal of the action proper? A. No, because dismissal is not a permitted sanction for failure to appear at a pretrial conference or obey a pretrial order. B. No, because the illustrator’s conduct was excusable. C. Yes, because the illustrator failed to attend the pretrial conference. D. Yes, because the illustrator failed to obey the judge’s order.

Answer 37

B. No, because the illustrator’s conduct was excusable. A. is wrong b/c court can treat it as a failure to comply w/ a discovery order --> Dismiss the case or hold party in contempt of court (previously selected this answer)

Question 38

The court may direct counsel and parties to appear for pretrial conferences If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may

Answer 38

impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including 1) contempt of court OR 2) dismissal of an action Dismissal of an action is a severe sanction, and generally it is appropriate only when a party’s conduct is serious, repeated, extreme, and otherwise inexcusable

Question 39

The general rule of appellate review of a lower court’s legal rulings is DE NOVO ABUSE OF DISCRETION applies to ________ decisions made by the court, such as the admissibility of evidence, not the trial court’s legal rulings The “CLEARLY ERRONEOUS” standard of review applies to a trial court’s FINDINGS OF FACT, not its rulings on the applicable law The "PLAIN ERROR" rule permits an appellate court to take notice of a plain error that affects a substantial right, even though a party failed to object or make an offer of proof at trial

Answer 39

ABUSE OF DISCRETION --> DISCRETIONARY rulings

Question 40

Full Faith and Credit requires that, in determining the CLAIM-PRECLUSIVE effect of a PRIOR FEDERAL judgment in an action based on DIVERSITY JX, federal common law requires that

Answer 40

the law of the STATE in which the federal court RENDERED ITS JUDGMENT be applied, UNLESS the state law is incompatible with federal interests

Question 41

Is there diversity jx/citizenship if the suit involves a U.S. citizen domiciled in a foreign country

Answer 41

No. No diversity of citizenship if it involves a stateless persons—i.e., (1) noncitizens present in the U.S. but not citizens of a foreign country or (2) a U.S. citizen domiciled in a foreign country

Question 42

Is driving through a State and getting in an accident in that State enough to establish Personal Jurisdiction?

Answer 42

Yes. Minimum Contacts (Specific Jx)

Question 43

(3) elements required for Collateral-Order Doctrine and Examples of collateral orders

Answer 43

1) The order conclusively resolves an IMPORTANT ISSUE 2) That issue is SEPARATE FROM THE MERITS of the underlying claim 3) The order cannot be effectively reviewed on appeal from a final judgment (will be ineffective) District court orders: -- denying state 11th Amendment immunity -- denying government official/employee immunity -- vacating attachment of vessel -- refusing to require security bond pursuant to state law -- remanding action to state court based on abstention -- orders imposing sanctions against attorneys -- orders compelling/denying Arbitration -- orders enforcing settlement agreement -- orders expunging a lis pendens

Question 44

True or False: Federal Rules of Civil Procedure (FRCP 4(h)) permits service of process on an organization by following the FORUM STATE's rules or rules of State where service was made—regardless of the federal court's basis for subject-matter jurisdiction or delivering process to an officer, managing or general agent, or agent authorized by appointment or law to receive service AND, if required by statute, mailing process to the defendant

Answer 44

TRUE. Person serving has to be someone who is a NON-PARTY to the suit and is at least 18 years old

Question 45

Party may voluntarily dismiss crossclaim, counterclaim, or third-party claim without court order when:

Answer 45

1) all parties who have appeared sign stipulation of dismissal (i.e. agreed) (OR) 2) claimant files notice of dismissal before (1) responsive pleading (eg, answer) served or (2) evidence introduced at hearing or trial (if no responsive pleading served)

Question 46

Under FRCP, Person serving process has to be someone who is

Answer 46

1) a NON-PARTY to the suit and 2) is at least 18 years old

Question 47

Will potential conflicts of interest among the class members that could undermine the adequacy of the representation by the named member bar the class from being certified?

Answer 47

Yes.

Question 48

If a case is removed to Federal Court that has (3) claims-- 2 state law claims and 1 federal law claim, and 1 of the state law claims arises out of the S/T/O as the federal law claim, but the other state law claim does not, should the court grant a plaintiff's subsequent motion to remand all 3 cases?

Answer 48

No, not all 3. Just the 1 state law claim that doesn't arise out of the S/T/O as the federal law claim. B/c court has SMjx over the Federal Law claim and can exert supplemental jx over the State law claim that arises out of the S/T/O. But not the other claim.

Question 49

If defendants reside in different states, where is venue proper?

Answer 49

-- Where substantial events/omission occurred -- Where property subject to the dispute is located -- If none of the above, then where court has PJx over Defendant

Question 50

If a man should be joined because he has a competing interest in the property, but adding him would destroy diversity, (so he cannot be joined) M UST the court dismiss the case upon motion by the party?

Answer 50

NO. The court may find that, in "equity and good conscience" the case should proceed, and that the man is not an indispensable party such that dismissal is required If the required party cannot be joined for any reason--such as because their joinder will destroy jurisdiction---the court must make a choice: 1) whether “in equity and good conscience,” the case should proceed without the required party OR 2) if the absent (required) party is actually “INDISPENSABLE,” meaning without them, the court should dismiss the case entirely

Question 51

Is there diversity between: Sister is a Canadian citizen, who is a permanent U.S. resident domiciled in State C vs. Lessee who is a citizen of State C

Answer 51

No. Only if it was U.S. citizens and Permanent residents domiciled in different states.

Question 51

May multiple PLAINTIFFS aggregate (i.e., combine) their claims to satisfy the amount-in-controversy requirement when they seek to enforce a single title or right to a common or undivided interest?

Answer 51

Yes.

Question 51

Can a federal court can acquire subject-matter jx over class members' claims that do not exceed $75,000 through supplemental jurisdiction?

Answer 51

Yes. If the NAMED OPPOSING PARTIES are citizens of different states (i.e., are diverse) and the amount in controversy for any NAMED PLAINTIFF'S GOOD-FAITH CLAIM exceeds $75,000 (Choice D).

Question 52

The minimum-contacts test does not apply to _________________________ because the defendant should not be able to avoid payment by removing his/her assets to another jurisdiction.

Answer 52

Actions where a federal court w/ PJx over the defendant enters a judgment, and the plaintiff is trying to enforce that judgment by a federal court in ANOTHER STATE by seizure of the defendant's property located in that state (e.g. a bank account) This is true even if the defendant lacks minimum contacts with the state enforcing the judgment.*

Question 53

When a party amends once as a matter of course (i.e. w/o court's permission), a response to the amended pleading (e.g., answer) generally must be made by the LATER of the following deadlines:

Answer 53

1) The time remaining to respond to the original pleading—e.g., an answer is generally due within 21 days after service of process OR 2) 14 days after the service of the amended pleading* *The court may shorten or extend these deadlines. When that occurs, the response must be made by the court-ordered deadline.

Question 54

FINAL JUDGMENT RULE When an action involves MULTIPLE claims OR parties, a district court may

Answer 54

enter final judgment as to fewer than all claims or parties if it EXPRESSLY determines that there is no just reason for delay. A party may then appeal that judgment without waiting for a final judgment to be entered on all claims in the action *only when there is multiple claims or parties, don't fall for this otherwise

Question 55

Is the mere existence of personal property, such as a bank certificate of deposit, owned by the defendant and located within the forum state sufficient to permit the court to exercise personal jurisdiction when the subject of the action (conversion of the plaintiff’s rare coins by the defendant) is not related to the certificate of deposit?

Answer 55

No.

Question 56

is a party advocating for a legal position that becomes "frivolous" in light of new precedent, subject to Rull 1 sanctions?

Answer 56

Yes, if they know of the new caselaw and do not dismiss their claim

Question 57

For a court to take Judicial Notice of a fact, does the fact have to be generally known within the court's jx?

Answer 57

No, not if the other option is proven, that the fact is "not subject to reasonable dispute"

Question 58

A defendant must file a notice of removal in federal court within _____ days after service. In diversity cases, defendants may not remove more than ______ after the state action commenced* *UNLESS the plaintiff somehow acted in bad faith to prevent the defendant from removing the case.

Answer 58

30 days; 1 year

Question 59

Do State laws that prohibit relation back apply in federal courts sitting in diversity?

Answer 59

No. State laws that prohibit relation back do not apply in federal courts. FRCP 15(c)(1)(A) specifically provides that federal courts sitting in diversity may follow the state law supplying the limitations statute when that law “allows relation back.

Question 60

A chemical company manufactured a liquid chemical product known as XRX. Some XRX leaked from a storage tank on the chemical company's property, seeped into the groundwater, flowed to a farmer's adjacent property, and polluted the farmer's well. Several of the farmer's cows drank the polluted well water and died. If the farmer brings an action against the chemical company to recover the value of the cows that died, the farmer will A: prevail, because a manufacturer is strictly liable for harm caused by its products. B: prevail, because the XRX escaped from the chemical company's premises. C: not prevail, because the farmer is not a foreseeable plaintiff. D: not prevail, because the chemical company was not engaged in an abnormally dangerous activity.

Answer 60

B: prevail, because the XRX escaped from the chemical company's premises. *Missed this previously caused I was said question didn't tell me "dangerous" etc. but chemicals + cow dying --> abnormally dangerous Brief Explanation B is correct. These facts are enough to sustain a strict liability claim, including an absolute duty to make safe the abnormally dangerous activity of storing the toxic chemical, causation in that the chemical that killed the cows leaked from the company's premises, and damage in the form dead cows, a lost property interest. A is incorrect. This statement of law is far too broad. A company will only be strictly liable for harm caused by its products if certain conditions exist, namely, an evidentiary showing that the product itself was unreasonably dangerous and defective. The farmer will prevail under strict liability theory, but because of the company's engagement in an abnormally dangerous activity, not due to products liability. C is incorrect. The farmer IS a foreseeable plaintiff because his property abuts the company's, so the mishandling of toxic chemicals would be reasonably likely to affect the farmer's property interests. D is incorrect. The storage of XRX was an abnormally dangerous activity because, even with reasonable care, there is a foreseeable risk of harm, and storage of this chemical is not a matter of common usage in the community given that it is surrounded by farmland.

Question 61

A plaintiff sues in federal court seeking $30k in damages, bringing a federal law claim and a state law claim. Defendant moves to dismiss the Federal law claim which the court grants. Defendant then moves to dismiss the state-law claim for lack of subject-matter jx. Can the Federal Court that had Federal Question jurisdiction hear the state-law claim if the Federal law claim that gave rise to the jx is dismissed on a MTD?

Answer 61

Yes. Under supplemental jx if they rise out of the same transaction/occurrence. But if the original claim has been dismissed, then the court MAY decline to exercise supplemental jurisdiction over the supplemental claim.

Question 62

The forum-defendant rule (i.e. defendant can't remove to federal court in state it is "home" in) only applies in

Answer 62

Solely DIVERSITY JX cases If both Diversity Jx and Federal Q Jx --> Rule DOES NOT apply

Question 63

A principal is generally not vicariously liable for torts committed by his/her independent contractor.  However, a principal who retains control over any part of the independent contractor's work is...

Answer 63

directly liable for any failure to use reasonable care in exercising that control *And a FAILURE to exercise such care subjects the Principal--as well as the Independent Contractor--to LIABILITY

Question 64

A homeowner hired a building contractor to rebuild her front porch.  The contractor told her that he planned to first rip out the old floorboards and pile them in the front yard.  Because she thought that would look unsightly, the homeowner insisted that the contractor loosen each board individually and leave them all in place until he was ready to start replacing them with new boards. The contractor loosened the boards and left them in place while he went out for lunch.  While the contractor was away, a friend of the homeowner stepped onto the porch to return a borrowed rake.  As the friend crossed the porch, the loosened boards shifted and the friend fell, breaking her leg. If the friend sues to recover for her injury, who is likely to be found liable to her?

Answer 64

Both parties. A principal is generally not vicariously liable for torts committed by his/her independent contractor.  However, a principal who retains control over any part of the independent contractor's work is directly liable for any failure to use reasonable care in exercising that control *And a FAILURE to exercise such care subjects the Principal--as well as the Independent Contractor--to LIABILITY

Question 65

Personal jurisdiction (court's authority over defendant) can be satisfied by:

Answer 65

Service of process --Serving process on defendant voluntarily in state where court is located (ie, forum state) Consent Express --contractual agreement (eg, forum-selection clause Implied --engaging in specific activity that state has substantial interest in regulating (eg, driving on public roads) Waiver -- untimely objection to personal jurisdiction Appearance -- voluntarily appearing in court to litigate merits of case  Specific (case-linked) -- Plaintiff's claim arises from or is closely related to defendant's minimum contacts (ie, purposeful availment) with forum state AND Exercise of jurisdiction complies with notions of fair play & substantial justice General (all-purpose) -- Defendant has continuous & systematic contacts with forum state so substantial that defendant is essentially "at home" (ie, defendant's domicile)

Question 66

A defendant is encouraged—but not required—to waive service of process by returning a signed waiver request.  If a defendant does not do so, then the plaintiff must

Answer 66

properly serve process before the defendant must respond to the complaint

Question 67

When venue is proper, district court may transfer case (i.e. grant a motion to transfer) to any other proper venue for

Answer 67

convenience of parties/witnesses & in interest of justice (i.e. a lot of witnesses are there and substantial portion of the events occurred there)

Question 68

If a passenger sued a railroad for injuries, and a substantial part of the events giving rise to the suit occurred in State A (where the passenger boarded and first rode the train) and State B (where the accident occurred), where is venue proper?

Answer 68

Both states.

Question 69

If a plaintiff's failure to name a defendant in the complaint was NOT due to mistaken identity because the complaint quoted the proposed defendant's name, will an amendment "relate back"?

Answer 69

No. If the plaintiff knew the party but failed to add them until later, it doesn't count as mistaken identity and the amendment therefore won't relate back --> will be futile for case where SOL has run

Question 70

May the court consider an objection to the jury instructions made AFTER the already court instructed the jury and the jury began deliberations?

Answer 70

Yes if the instruction constituted plain error

Question 71

When should an objection to jury instructions be made?

Answer 71

BEFORE the court instructs the jury Court MUST inform parties of proposed instructions before instructing jury & closing arguments Court MUST allow parties make objection to jury instructions OUTSIDE presence of the Jury

Question 72

Court _____ inform parties of proposed instructions before instructing jury & closing arguments Court _____ allow parties make objection to jury instructions OUTSIDE presence of the Jury

Answer 72

MUST; MUST

Question 73

A voluntary dismissal without a court order is permitted when: 1) all the parties who have appeared in the action sign a stipulation of dismissal  OR 2) the plaintiff unilaterally files a notice of dismissal before the defendant serves an answer or a motion for summary judgment. If neither of these occur, then the only way that the plaintiff can voluntarily dismiss a suit is

Answer 73

with a court order a/k/a FILE MOTION FOR VOLUNTARY DISMISSAL

Question 74

IMMEDIATE APPEAL FROM ORDERS Most interlocutory orders, (such as the denial of a summary judgment motion, lack of subject-matter jurisdiction, a motion to dismiss, or the granting of a new trial motion) are

Answer 74

NOT immediately appealable because such an order is not a final judgment

Question 75

A plaintiff suing a U.S. officer or employer in his INDIVIDUAL capacity (i.e. personally for damages), on the basis of action conducted in connection w/ duties performed on behalf of the U.S., the plaintiff is required to also serve process on

Answer 75

the United States

Question 76

A new trial may not be granted for harmless error (one that does not affect the substantial rights of the party seeking the new trial) Can a trial judge order a new trial 2 weeks later because of what the judge has concluded to be her own errors committed during the trial? (e.g. jury misunderstood her instructions, they weren't clear)

Answer 76

Yes. This is especially likely to occur in jury trials if the judge believes her errors tainted the jury’s verdict.

Question 77

Diversity Jurisdiction Federal Law vs. State Law as to damages for Remittur Who wins?

Answer 77

State A law because this is a diversity case and the court is required to apply the state substantive law standard

Question 78

If a federal judge believes the jury’s damages award is too high (excessive) such that it “shocks the conscience,” or, in a diversity case, if the award meets the applicable state standard for excessiveness, the judge

Answer 78

may order a NEW TRIAL OR offer the alternative of a reduction in damages (“REMITTUR”).

Question 79

A Federal court can only TRANSFER a suit to another

Answer 79

FEDERAL COURT NOT to a State Court NOT to a Foreign country court

Question 80

VENUE A defendant business resides in ever district where

Answer 80

it is subject to personal jx

Question 81

If 2 plaintiffs see an ad in State A for a hike in a FOREIGN COUNTRY, and they make the call booking the hike in State A, but the business is incorporated/PPB in the FOREIGN COUNTRY, and the plaintiffs subsequently die on the hike in the FOREIGN COUNTRY, and sue for wrongful death in State A, is there still PERSONAL JX over the Foreign Country?

Answer 81

Yes, b/c sufficient minimum contacts GAVE RISE TO THE CLAIM in State A. (e.g. the Ad, the phone call booking it)

Question 82

DIVERSITY JURISDICTION The citizenship of a legal representative is determined by the domicile of

Answer 82

the minor, legally incompetent person, or decedent on whose behalf the legal representative acts

Question 83

Is a claim arising under State Law, but where a plaintiff also cites to Federal Law as to the calculation of damages sufficient enough for a Federal Question for Federal Question Jurisdiction?

Answer 83

No.

Question 84

Is a regular 14-day TRO immediately appealable? (Interlocutory appeal--In Certain Cases An Appeal Can Be Made Prematurely?) Is a TRO extended to 30 days?

Answer 84

No. Yes. A TRO extended to 30 days becomes a preliminary injunction and IS immediately appealable as an interlocutory appeal.

Question 85

The interlocutory appeals statute allows certain orders to be appealed before the entry of a final judgment—e.g., the grant or denial of a preliminary injunction.  A temporary restraining order EXTENDED BEYOND 14 days is

Answer 85

equivalent to a preliminary injunction and is immediately appealable under this statute.

Question 86

Offers to pay medical, hospital, or similar expenses are

Answer 86

INADMISSIBLE to PROVE *LIABILITY* Conduct or statements NOT PART OF THE OFFER to pay medical expenses are ARE ADMISSIBLE *even if* made *contemporaneously* with offer  

Question 87

Unlike an ex parte TRO, a preliminary injunction may be issued only after

Answer 87

the adverse party has RECEIVED NOTICE of the preliminary-injunction hearing *can't get around this like you can w/ a TRO (e.g. irreparable harm, etc.)

Question 88

In a DIVERSITY case, if a court TRANSFERS the case from a court where venue was proper (e.g. defendant's motion to transfer, etc.), then the district court to which the case is TRANSFERRED TO MUST apply the choice-of-law rules that

Answer 88

would have been applied in the DISTRICT COURT that TRANSFERRED the case (the court where the case got transferred from) BUT This rule only applies when venue is PROPER in the ORIGINAL COURT

Question 89

Is a defendant's counterclaim considered in determining the existence of federal-question jurisdiction? E.g. if a plaintiff sues in federal court w/ a State law claim w/ no diversity jx, Defendant files federal law counterclaim, court dismiss the federal law counterclaim on summary judgment, and then Court sua sponte dismisses State law claim for lack of smjx?

Answer 89

Nope. Only plaintiff's claims matter. Dismissal of plaintiff's claim would've been regardless of the court's ruling on the Defendant's counterclaim (i.e. even if they kept his claim intact)

Question 90

Statute of Limitations and Tolling Statutes are SUBSTANTIVE law and therefore Federal Court sitting in Diversity Jx regarding these issues must apply

Answer 90

STATE LAW

Question 91

A Defendant can only remove a case from state court to a Federal court in the State that

Answer 91

the original action was brought

Question 92

Is misjoinder a ground for dismissing an action?

Answer 92

No. Court can on its own, or motion by a party, add or drop a party, or sever the case.

Question 93

Joinder is proper where

Answer 93

1) claims arise from single transaction/occurrence, or series of T/O AND 2) there is a common question of law or fact among all plaintiffs that will arise

Question 94

True or False: A trial judge may impose sanctions on its own initiative (sua sponte) if it believes an attorney/associate acts in bad faith at a conference or is substantially unprepared to participate in a pre-trial conference.

Answer 94

TRUE

Question 95

What rules does a federal court (sitting in Diversity or Federal Q jx) apply for PRECLUSION?

Answer 95

When the FIRST case was decided in a STATE court, the second court, even if a federal court, should apply the preclusion rules of the FIRST court.

Question 96

(Preserving issues for appeal: challenge to the sufficiency of the evidence) A challenge to the SUFFICIENCY OF THE EVIDENCE should be made as a motion for

Answer 96

JMOL BEFORE case is SUBMITTED to the jury The motion must then be RENEWED AFTER the VERDICT --> This preserves the issue for appeal

Question 97

Initial Disclosures FRCP 26 Early in a case, initial mandatory disclosures FRCP 26 require parties to provide certain info without a discovery request (identities of witnesses, documents and tangible things a party plans to use, information about damages, and any insurance policies that may apply to the judgment), this must be made no more than ____ days after the initial PTC

Answer 97

14 days

Question 98

Under federal pleadings standards, does including a legal conclusion in a pleading make the pleading defective?

Answer 98

No.

Question 99

"On January 15, 2016, on Broad Street in City A, located in State B, the defendant negligently drove a motor vehicle, striking the plaintiff. As a result, the plaintiff was physically injured, lost wages or income, suffered physical and mental pain, and incurred medical expenses of $100, 000." Is this sufficient for federal pleading standards?

Answer 99

Yes. Here, the pedestrian’s complaint sets out the date and place of an accident in which the pedestrian claims that the truck driver hit him and lists several resulting injuries and losses. If proven, these facts set out a plausible negligence claim.

Question 100

Typically, if a defendant is voluntarily present in the forum state and served with process there, then the court has personal jurisdiction over the defendant. What are two exceptions?

Answer 100

(1) If a plaintiff fraudulently brings a defendant into the state for the purpose of serving process on the defendant (2) If a defendant is merely passing through the state to attend other judiciary proceedings