MBE Questions Flashcards
An entrepreneur in State A decided to sell hot sauce to the public, labeling it as “Best Hot Sauce.”
A company incorporated in State B and HQ’d in State C sued the entrepreneur in federal court in State C. The complaint sought $50K in damages and alleged that the entrepreneur’s use of the name “Best Hot Sauce” infringed on the company’s federal trademark. The entrepreneur filed an answer denying the allegations, and the parties began discovery. Six months later, the entrepreneur moved moved to dismiss for lack of SMJ.
Should the court grant his motion?
A) No because the company’s claim arises under federal law
B) No because the entrepreneur waived the right to challenge SMJ by not raising the issue initially by motion or in the answer
C) Yes because although the claim arises under federal law, the AIC is not satisfied
D) Yes, because although there is diversity, the amount in controversy is not satisfied
A) No because the company’s claim arises under federal law
§1331 - SMJ is present when the issue arises under federal law
An investor from State A filed an action against his State B stockbroker in federal court in State A. The summons and complaint were served at the stockbroker’s office in State B, where the process server handed the documents to the stockbroker’s administrative assistant.
The stockbroker answered the complaint, asserting the defense of improper service of process. Assume that both states’ requirements for service of process are identical to the requirements of the FRCP.
Is the court likely to dismiss the action for improper service of process?
A) No, because service was made on a person of suitable age found at the stockbroker’s place of employment
B) No, because the stockbroker waived her claim for improper service of process by asserting it in her answer
C) Yes, because an individual defendant may not be served by delivering process to a third party found at the defendant’s place of employment.
D) Yes, because process of State A courts is not effective in State B.
C) Yes, because an individual defendant may not be served by delivering process to a third party found at the defendant’s place of employment.
Service of process may take place at the defendant’s place of employment if delivered to an agent of the defendant
A railroad worker’s widow brought a wrongful death action in federal court against the railroad, claiming that its negligence has caused her husband’s death. At trial, the widow offered the testimony of a coworker of the husband. The coworker testified that he had seen the rail car on which the husband was riding slow down down and the cars behind it gain speed. The coworker also stated that he later heard a loud crash, but did not turn around to look because loud noises were common in the yard. Three other railroad employees testified that no collision had occurred.
At the close of the evidence, the railroad moved for judgment as a matter of law, which was denied, and the case was submitted to the jury. The jury returned a verdict for the widow.
The railroad made a renewed motion for judgment as a matter of law. What standard should the court apply to determine how to rule on the motion?
A) Whether the evidence revealed a genuine dispute of material fact supporting the widow’s claim
B) Whether the verdict is against the weight of the evidence
C) Whether the widow presented a scintilla of evidence to support the verdict
D) Whether there is substantial evidence in the record to support the verdict, resolving all disputed issues in the widow’s favor.
D) Whether there is substantial evidence in the record to support the verdict, resolving all disputed issues in the widow’s favor.
Renewed motion = same standard as the initial motion for judgment as a matter of law
A university student, citizen of State A, believes that her university violated federal law when it eliminated funding for the women’s varsity volleyball team. She had sued the university, a nonprofit corporation, located in incorporated in State B, and the university’s athletic director, a citizen of state B, in federal court in State B.
What is the best method of serving the defendants?
A) Service as required by State B’s rules of civil procedure
B) Service by process server’s leaving copies of the summons and complaint with secretaries in the respective offices of the athletic director and the university president
C) Service by emailing copies of the summons and complaint to the athletic director and the university president
D) Service by the student herself on the athletic director and the university president
A) Service as required by State B’s rules of civil procedure
Federal courts recognize the state rules for service of process
A small commercial airplane crashed in State A. The passengers and pilot, all citizens of State B, were killed in the crash. The airline that owned and operated the airplane is incorporated and has its maintenance facilities and principal place of business in State C.
One day before the SOL on their claims have run, the estates of the pilot and each of the passengers filed a wrongful death action against the airline in federal court in State A. The airline was served one week later and wants to prevent State A federal court from hearing the action.
A) Motion to dismiss the action for improper venue
B) A motion to dismiss the action for lack of PJ
C) A motion to dismiss the action under forum non conveins
D) Motion to transfer the action to a federal court in State
D) Motion to transfer the action to a federal court in State
Forum non conveins = out of the country
A woman sued her former employer in state court, asserting age and sex and age discrimination under both state and federal law. The woman’s attorney had recently been embarrassed in court by the judge to whom the case was assigned. Wishing to avoid difficulties with the judge, the woman’s attorney promptly removed the case to federal court on the basis of federal-question jurisdiction. The employer’s attorney has timely moved to remand.
How is the federal court likely to proceed?
A) Remand the entire case
B) Remand the state claims but keep the federal claims
C) Retain the case to avoid the risk of bias and impropriety in having it proceed before a judge who has shown clear hostility towards the woman’s attorney
D) Retain the case, because it was timely removed and the woman alleges federal claims
A) Remand the entire case
Only defendants can remove cases
The distracted driver of a powerboat struck and seriously injured two water skiers who, at the time of the accident, were performing a stunt in which one was on the shoulders of the other. The unrelated skiers, who each suffered damages in excess of $100,000, filed a joint complaint based on negligence in a federal court located in the district in which the accident occurred. One of the skiers was a citizen of the forum state. The driver-defendant and the other skier were citizens of a neighboring state. The forum state has a long-arm statute that permits the exercise of jurisdiction to the extent permissible under the due process clause of the Fourteenth Amendment.
Upon which of the following grounds can the driver most likely obtain dismissal of the claim asserted by the skier who is not a citizen of the forum state?
A) Improper joinder.
B) Lack of subject-matter jurisdiction.
C) Lack of personal jurisdiction.
D) Lack of venue.
B) Lack of subject-matter jurisdiction.
Here, both skiers satisfied the amount-in-controversy requirement because they each sought $100,000 in damages. However, the neighboring-state skier and the driver are domiciled in the same state, so there is no diversity of citizenship between them.
A plaintiff, a resident of State A, filed a complaint against two defendants in a state court in State B, where a car accident between the parties took place. The claims were based solely on state law. One defendant resides in State B, where the accident occurred, and another resides in State C, a neighboring state. The complaint alleged that each defendant caused $100,000 in damages. The defendant who resides in State B was personally served with a complaint and summons while he was walking to work in State B. The defendant who resides in State C was served by a process server in the forum state after attending a business meeting in that state. Shortly thereafter, both defendants filed a notice to remove the case to the federal district court in the district where the case was filed. The plaintiff filed a motion to remand. The federal district court granted the plaintiff’s motion.
What is the most likely reason that the motion was granted?
A) One of the defendants is a citizen of the state in which the action was filed.
B) The federal court could not exercise personal jurisdiction over both defendants.
C) The federal court lacked subject-matter jurisdiction over the claims.
D) Venue would be improper in the federal district where the case was filed.
A) One of the defendants is a citizen of the state in which the action was filed.
The home-court-advantage rule prohibits removal from state to federal court when:
(1) the federal court’s subject-matter jurisdiction arises from diversity jurisdiction; and
(2) a defendant is a citizen of the state where the case was filed.
Here, since one of the defendants is a citizen of State B—where the action was filed—the home-court-advantage rule prohibits removal to federal court.
Note: For a case that is removed from state court, venue is proper in the federal district court in the district where the state action was pending. Therefore, venue was proper in the federal district where the case was originally filed.
A plaintiff was severely injured when her car collided with the defendant’s truck on a highway in State A. The plaintiff was a citizen of State B, and the defendant was a citizen of State A. The defendant had no contacts with State B. The plaintiff filed suit in federal district court in State B under diversity jurisdiction, asserting a state-law claim for damages resulting from the defendant’s alleged negligence. The defendant filed an answer, specifically denying each of the plaintiff’s claims. Three months later, after discovery concluded and just before trial, the defendant filed a motion to dismiss the action for lack of personal jurisdiction.
Should the court dismiss the action for lack of personal jurisdiction over the defendant?
A) No, because dismissal would prejudice the plaintiff, since discovery has already occurred in the case.
B) No, because the defendant has waived the objection to the court’s jurisdiction.
C) Yes, because the defendant had no contacts with State B.
D) Yes, because a court may dismiss an action for lack of personal jurisdiction at any time prior to final judgment.
B) No, because the defendant has waived the objection to the court’s jurisdiction.
The defense of lack of personal jurisdiction is waived if it is not asserted in a pre-answer motion or an answer, whichever occurs first.
During the defendant’s cross-country road trip, he was involved in a car accident with the plaintiff in the state where the plaintiff lived. Following the accident, the plaintiff sued the defendant in federal court located in the state where the accident occurred. Prior to the accident, the defendant had never been to the forum state. The defendant flew home from the forum state directly following the accident and has not been back to the forum state since that time. Before filing a responsive pleading, the defendant filed a motion to dismiss, arguing that the court lacked personal jurisdiction. The court denied the defendant’s motion.
What is the most likely basis for the exercise of jurisdiction over the defendant in this case?
A) General jurisdiction.
B) In rem jurisdiction.
C) Quasi in rem jurisdiction.
D) Specific jurisdiction.
D) Specific jurisdiction.
Specific personal jurisdiction exists when
(1) the plaintiff’s claim arises from the defendant’s minimum contacts with the forum state and
(2) the exercise of jurisdiction would comply with notions of fair play and substantial justice.
A plaintiff filed a complaint in federal district court under diversity jurisdiction seeking damages for injuries arising out of a car accident with the defendant. The following day, the plaintiff’s 20-year-old spouse served the complaint together with the summons on the defendant. Twenty days later, the defendant learned that the plaintiff’s spouse had not submitted proof of service to the court. The defendant then filed a motion to dismiss for insufficient service of process.
Should the court grant the defendant’s motion to dismiss?
A) No, because the failure to file proof of service does not affect the validity of the service.
B) No, because the time for filing a motion to dismiss for insufficient service of process had expired.
C) Yes, because the time for filing proof of service has expired.
D) Yes, because the plaintiff’s spouse served the summons and complaint.
A) No, because the failure to file proof of service does not affect the validity of the service.
The plaintiff must provide proof of service of process to the court when service was properly made in the U.S. and not waived by the defendant. But a failure to prove service of process does not affect the validity of the service.
The plaintiff resides in a city in the Southern District of State C. The plaintiff credibly alleges that her federal legal rights were violated in a city in the Western District of State D by two defendants. The first defendant resides in a city in the Northern District of State C. The second defendant resides in a town in the Central District of State C, where the plaintiff’s employer is located.
In which districts would venue be proper as to all the parties?
A) The Western District of State D, the Northern District of State C, or the Southern District of State C.
B) The Western District of State D, the Central District of State C, or the Southern District of State C.
C) The Western District of State D, the Northern District of State C, or the Central District of State C.
D) The Western District of State D, the Northern District of State C, the Central District of State C, or the Southern District of State C.
C) The Western District of State D, the Northern District of State C, or the Central District of State C.
Venue is proper in any federal district where (1) any defendant resides, as long as all defendants reside in the same state, (2) a substantial part of the events occurred or a substantial part of the property at issue is located, or (3) any defendant is subject to the court’s personal jurisdiction (if the first two provisions do not apply).
A bakery negotiated with a supplier regarding a long-term commitment to supply flour. They agreed to specific terms to be memorialized in a written contract. Due to an oversight, the supplier never signed the written contract, although it began providing flour to the bakery under the terms of their agreement. Six months later, the price of flour rose dramatically following a nationwide drought. The supplier, realizing that it had never signed the contract, told the bakery that it would have to charge a higher price for the flour. The bakery properly filed a complaint in federal district court, alleging that the supplier had breached their contract. The supplier filed an answer in which it denied the factual allegations in the complaint regarding the price and duration of the contract but did not raise any affirmative defenses. The following day, the supplier filed a motion to dismiss, asserting that the oral contract between the parties violated the statute of frauds.
Can the court grant the supplier’s motion to dismiss?
A) Yes, because the answer denied the factual allegations regarding the terms of the contract.
B) Yes, because the complaint failed to state a claim upon which relief could be granted.
C) No, because the supplier waived any objection on the pleadings by filing an answer.
D) No, because the supplier did not assert the statute of frauds in its answer.
D) No, because the supplier did not assert the statute of frauds in its answer.
An answer must include
(1) admissions and denials;
(2) motions that have not been waived;
(3) affirmative defenses; and
4) compulsory counterclaims.
Otherwise, these items will be waived.
Here, the bakery filed a complaint in federal district court, alleging that the supplier had breached their contract. In its answer, the supplier denied the factual allegations regarding the contract’s terms—i.e., the price of flour and the contract’s duration—but did not raise any affirmative defenses.
A defendant filed a complaint against a third-party defendant for contribution permitted under federal law for any environmental damages for which the defendant may be found liable. The third-party defendant and the defendant were domiciled in the same state. The third-party defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted. The third-party defendant also submitted affidavits in support of its position, but the court refused to consider them. After taking all well-pleaded facts in the defendant’s complaint as true and resolving all doubts and inferences in the defendant’s favor, the court denied the motion to dismiss.
Has the court acted properly in making its ruling?
A) No, because the court lacked subject-matter jurisdiction over the complaint against the third-party defendant.
B) No, because the court failed to consider the third-party defendant’s affidavits.
C) Yes, because the court took all well-pleaded facts in the complaint as true and resolved all doubts and inferences in the defendant’s favor.
D) Yes, because a third-party defendant cannot file a motion to dismiss for failure to state a claim upon which relief can be granted.
C) Yes, because the court took all well-pleaded facts in the complaint as true and resolved all doubts and inferences in the defendant’s favor.
When considering a motion to dismiss for failure to state a claim, the court must
(1) treat all well-pleaded facts in the complaint as true and
(2) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant
Note: *If the court considers matters outside the pleadings, such as affidavits, then the motion for failure to state a claim will be treated as a motion for summary judgment. When this occurs, the parties will be given an opportunity to present all material information to the court for consideration.
Two unrelated passengers on a small plane sued the pilot of the plane for injuries suffered during a rough landing after a sightseeing trip. They filed a negligence action in federal district court with the younger passenger, who had only minor injuries, claiming $5,000 in damages and the older passenger, whose injuries were life-threatening, claiming $95,000. The two passengers are citizens of the same state. The pilot is a citizen of another state. The pilot moved to dismiss the younger passenger’s claim for lack of subject-matter jurisdiction.
Should the court dismiss the younger passenger’s claim?
A) No, because the total damages sought exceed the amount-in-controversy requirement.
B) No, because the court can exercise supplemental jurisdiction over the claim.
C) Yes, because this claim fails to satisfy the amount-in-controversy requirement.
D) Yes, because the younger passenger is a citizen of the same state as the older passenger.
B) No, because the court can exercise supplemental jurisdiction over the claim.
A federal court may generally exercise supplemental jurisdiction over claims that fall outside of its original subject-matter jurisdiction IF
1) those claims share a common nucleus of operative facts
2) with a claim that falls within its original subject-matter jurisdiction.
A plaintiff filed an action against a defendant in federal district court. The complaint alleged that the defendant had infringed upon a trademark held by the plaintiff under federal law and sought $55,000 in damages. In addition, the plaintiff claimed damages of $10,000 allegedly attributable to the defendant’s negligence in causing an auto accident involving the two parties. The plaintiff and the defendant are citizens of different states. The defendant moved to dismiss the negligence claim for lack of subject-matter jurisdiction. The court denied the motion.
Was the court’s ruling correct?
A) No, because a claim based on state law may not be joined with a claim over which the court has federal-question jurisdiction.
B) No, because neither diversity nor supplemental jurisdiction exists with respect to the negligence claim.
C) Yes, because the court can exercise supplemental jurisdiction over the negligence claim.
D) Yes, because the court has diversity jurisdiction over the negligence claim.
B) No, because neither diversity nor supplemental jurisdiction exists with respect to the negligence claim.
A federal court will generally exercise supplemental jurisdiction over claims that fall outside its original subject-matter jurisdiction (i.e., federal-question or diversity jurisdiction) IF
1) the claims share a common nucleus of operative facts
2) with a claim within its original jurisdiction
Here, federal-question jurisdiction exists over the plaintiff’s trademark claim because it arises under federal law. But such jurisdiction does not exist over the plaintiff’s state negligence claim. And though the opposing parties are citizens of different states, the amount-in-controversy requirement is not satisfied—even after the negligence claim ($10,000) and trademark claim ($55,000) are aggregated.
Three shareholders brought an action in federal district court for a violation of federal securities law against a corporation. The shareholders sought certification of a class of all persons who had purchased stock during a two-year period. The members of the class suffered damages that ranged from $75 to $65,000, with the total damages sought just exceeding $3 million. Some members of the class are citizens of the same state as the corporation, but none of the three representative shareholders is a citizen of the same state as the corporation.
Does the court have subject-matter jurisdiction over this action?
A) Yes, because none of the three representative shareholders is a citizen of the same state as the corporation.
B) Yes, because the action is based on a violation of federal securities law.
C) No, because no member of the class has suffered damages in excess of $75,000.
D) No, because some members of the class are citizens of the same state as the corporation.
B) Yes, because the action is based on a violation of federal securities law.
A federal court has subject-matter jurisdiction over a class action when the action arises under the U.S. Constitution, a treaty, or federal law (i.e., federal-question jurisdiction) OR when the named opposing parties are diverse and the amount in controversy for any named plaintiff’s claim exceeds $75,000 (i.e., diversity jurisdiction).
The plaintiff, a State N citizen, properly invokes a State M federal court’s diversity jurisdiction in a tort suit against the defendant, an airplane manufacturer based in State M. The plaintiff credibly alleges that he was severely injured when the defendant’s airplane crashed as a result of an improperly installed engine part. During discovery, the plaintiff learns that an employee of the defendant who installed engine parts at the time the plane was manufactured was an alcoholic whose drinking may have impaired his work. The defendant fired the employee before the plane crash that injured the plaintiff.
What discovery device may the plaintiff use to obtain more information from the former employee?
A) An oral deposition.
B) An interrogatory.
C) A physical examination.
D) A request for admission.
A) An oral deposition.
A deposition is a discovery method in which a party conducts a written or oral examination of a party or nonparty under oath and outside of court.
Here, the plaintiff can use an oral deposition to obtain information from the defendant’s former employee—and, if necessary, can obtain a subpoena to compel the nonparty’s attendance.
A tenant properly filed a complaint under state law against his landlord in federal district court under diversity jurisdiction, alleging that the landlord’s negligence in failing to repair the stairs in a common area of the apartment building resulted in the tenant falling and sustaining significant injuries. After the landlord served his answer, the tenant moved for summary judgment. In support of his motion, the tenant submitted (1) an affidavit from another tenant in the building who had told the landlord prior to the accident that the stairs needed to be fixed after she almost fell, (2) an affidavit from a friend who had witnessed the tenant’s fall and drove him to the emergency room, and (3) the written lease signed by the landlord and the tenant which required the landlord to make all repairs in the common areas of the building. In opposition to the motion, the landlord submitted an affidavit from the maintenance worker employed by the landlord, stating that the stairs were in good condition on the day of the tenant’s accident.
How should the court rule on the motion for summary judgment?
A) Deny the motion, because a reasonable jury could return a verdict in favor of the landlord.
B) Deny the motion, because the tenant did not meet the burden of production.
C) Grant the motion, because in viewing the evidence in the light most favorable to the tenant, the tenant is entitled to judgment as a matter of law.
D) Grant the motion, because the tenant presented more evidence in support of the motion than the landlord presented in opposition to it.
A) Deny the motion, because a reasonable jury could return a verdict in favor of the landlord.
Summary judgment should be granted if the movant shows:
(1) there is no genuine dispute as to any material fact and
(2) the movant is entitled to judgment as a matter of law.
A mayor sued a blogger for defamation in federal district court under diversity jurisdiction. The mayor alleged in her complaint that the blogger had published defamatory statements about her that suggested she was having an adulterous relationship. The mayor’s entire case rested on her own testimony establishing the prima facie elements of her claim and a properly authenticated and admitted copy of the allegedly defamatory publication. At the end of the mayor’s presentation of evidence to the jury, the blogger filed a motion for judgment as a matter of law. Finding that the mayor’s meager evidence was insufficient for a jury to reasonably find that the publication was false, as was required by state law, the judge granted the blogger’s motion and directed a judgment in favor of the blogger. The mayor immediately appealed the judgment, contending that the trial judge applied the wrong legal standard in granting the motion.
On these facts, should the judgment be set aside on appeal?
A) No, because the district court’s ruling was not clearly erroneous.
B) No, because the mayor failed to meet her burden of establishing a prima facie case as a matter of law.
C) Yes, because a motion for judgment as a matter of law cannot be granted until both parties have presented their cases.
D) Yes, because the district court improperly evaluated the weight of the evidence.
D) Yes, because the district court improperly evaluated the weight of the evidence.
When considering a motion for JMOL, the court must
(1) view the evidence and draw all reasonable inferences in favor of the nonmovant,
(2) disregard any evidence favorable to the movant that the jury need not believe, and
(3) not consider the credibility of witnesses or the weight of evidence.
Here, the blogger timely moved for JMOL before the case was submitted to the jury. However, the judge improperly evaluated the weight of the mayor’s evidence by determining that it was meager and therefore insufficient for a jury to reasonably find that the blogger’s publication was false. The judge therefore applied the wrong legal standard in granting the motion for JMOL, so the judgment should be set aside on appeal.
In a civil action properly brought in federal district court based on diversity jurisdiction, a jury of seven persons was impaneled. During the trial, the court excused a juror for good cause. After the case was submitted to the jury for deliberation, the court excused a second juror, also for good cause. The remaining jurors returned a unanimous verdict for the plaintiff.
Can the defendant successfully challenge this verdict?
A) No, because the jury verdict was unanimous.
B) No, because the court excused both jurors for good cause.
C) Yes, because fewer than six jurors returned the verdict.
D) Yes, because the court may not excuse a juror once deliberations have begun.
C) Yes, because fewer than six jurors returned the verdict.
A jury verdict must be unanimous and returned by a jury of at least 6 (but no more than 12) members unless the parties stipulate otherwise.
A consumer filed a products liability action against a manufacturer in federal district court based on diversity jurisdiction. Prior to trial, the manufacturer filed a motion in limine to exclude testimony by an expert on the consumer’s witness list on the grounds that it was based on subjective belief and unsupported speculation. After holding a hearing, the judge granted the manufacturer’s motion. Because of this ruling and the consumer’s inability to produce other evidence in support of her case, the judge granted the manufacturer’s subsequent motion for summary judgment. The consumer appealed the judgment, contending that the district court judge had erroneously excluded the testimony of the consumer’s expert.
In reviewing this challenge to the trial court’s ruling, what standard should the appellate court apply?
A) Abuse of discretion, because the judge had made an evidentiary ruling.
B) Absence of a genuine dispute and entitlement to judgment as a matter of law, because the ruling affected the summary judgment motion.
C) Preponderance of the evidence, because the ruling was outcome determinative.
D) Clearly erroneous, because the ruling was made by the judge.
A) Abuse of discretion, because the judge had made an evidentiary ruling.
The abuse-of-discretion standard of appellate review applies to a trial court’s discretionary rulings—e.g., whether to admit evidence. Under this highly deferential standard, the appellate court will only reverse a clearly arbitrary or unreasonable ruling.
A mother bought reusable snack bags from a company. The company uses an antibacterial agent called triclosan in its reusable snack bags to help prevent mold from growing in the bags. Triclosan is a known toxin that may, if used in a sufficient amount, weaken the immune system, especially when used in a moist environment, such as with reusable snack bags containing fruit or other damp foods. The mother who purchased the snack bags sued the company in federal court because she believed that the toxins in the company’s snack bags caused her son to contract an illness due to his weakened immune system. At a bench trial, the judge found that the amount of triclosan used by the company in its snack bags was sufficient to weaken a child’s immune system and that the boy would not have suffered from this particular illness unless his immune system had been weakened. As a result, the judge entered a judgment in favor of the mother at the conclusion of trial.
In an unrelated action also filed against the company in the same federal court, a father sought damages from the company on behalf of his daughter, who had contracted an illness after using the company’s snack bags. During the trial, the father moved for partial summary judgment on the basis of collateral estoppel to prevent the company from contending that the amount of triclosan it used in its snack bags was insufficient to cause the weakening of a child’s immune system.
Should the court grant this motion?
A) No, because a jury did not render a final judgment on the merits.
B) No, because the daughter was not a party in the prior case.
C) Yes, because offensive use of collateral estoppel is permitted.
D) Yes, because the facts involved are related in time, space, origin, or motivation.
C) Yes, because offensive use of collateral estoppel is permitted.
Issue Preclusion: Collateral estoppel can be used offensively by the plaintiff in a second action to establish an issue against parties from the first action—with limited exceptions.
Here, the judge in the first action entered a final judgment after finding that the amount of triclosan used in the company’s snack bags was sufficient to weaken a child’s immunity. The father, on behalf of his daughter (a nonparty to the first action), then filed an unrelated lawsuit against the company. Since the first action determined that triclosan can weaken a child’s immunity, the father’s use of offensive, nonmutual collateral estoppel is permitted.
A plaintiff filed a negligence-based action against a defendant in state court but did not serve the complaint on the defendant for several days. After being served with the complaint, the defendant properly removed the action to federal court based on diversity jurisdiction. Under state law, an action commences by service of the complaint on the defendant. State law also provides that a negligence action must be commenced within two years of the date on which the cause of action arose. At the time the action was filed, two years had not passed from the date on which the cause of action arose. However, at the time of service, more than two years had passed from the date on which the cause of action arose. The defendant has timely moved to dismiss the action as barred by the statute of limitations.
Should the federal court grant this motion?
A) No, because the federal rules provide that an action commences upon the filing of a complaint.
B) No, because the federal court is not required to apply the state procedural rule.
C) Yes, because the action was not removed to federal court prior to the expiration of the two-year statute of limitations.
D) Yes, because under state law the action did not commence until the defendant was served with the complaint.
D) Yes, because under state law the action did not commence until the defendant was served with the complaint.
Erie: state law applies if
(1) it is outcome determinative—i.e., forum-shopping or inequitable administration of the laws would result if it is not applied—and
(2) there is no countervailing federal policy interest.
Here, failing to apply state law would result in the inequitable administration of the laws as it would encourage litigants to sue in federal court to obtain a longer limitations period.
Note: there is no countervailing federal policy to prevent the application of state law.
A plaintiff from State A entered into a three-party contract with a contractor and an electrician, both from State B. The contract covered renovation and reconstruction services that the contractor and electrician were to provide at the plaintiff’s newly purchased home. Upon inspection of the finished work, the plaintiff determined that there were substantial deviations from the contract and significant errors in workmanship. The plaintiff brought a diversity action for breach of contract against the contractor and electrician in federal district court in State B, alleging $125,000 in damages. The contractor then filed a crossclaim against the electrician for breach of that same contract and requested $75,000 in damages. The electrician has moved to dismiss the contractor’s crossclaim for lack of subject-matter jurisdiction.
Should the electrician’s motion be granted?
A) No, because the crossclaim arises out of the same transaction or occurrence as the plaintiff’s claim.
B) No, because the crossclaim is based on the same legal theory as the plaintiff’s claim.
C) Yes, because the contractor and electrician are not diverse.
D) Yes, because the crossclaim does not satisfy the amount-in-controversy requirement.
A) No, because the crossclaim arises out of the same transaction or occurrence as the plaintiff’s claim.
A court may exercise supplemental jurisdiction over a claim that does not independently satisfy subject-matter jurisdiction requirements when that claim shares a common nucleus of operative facts
Here, the contractor’s crossclaim is related to the plaintiff’s claim since they arise out of the same transaction or occurrence (the three-way contract), so the court can exercise supplemental jurisdiction over the crossclaim.
A child from State A suffered severe burns when a motorized toy unexpectedly overheated after only a couple minutes of use. The toy was designed and manufactured by a manufacturer incorporated and with its principal place of business in State B. The child’s parents bought the toy from a retailer in State C. The child’s parents filed an action for strict products liability against the retailer in federal district court in State C under diversity jurisdiction. In their complaint, the child’s parents alleged $150,000 in damages. The retailer subsequently filed a third-party complaint against the manufacturer, alleging that the manufacturer produced a defective product and that the manufacturer would be required to fully indemnify the retailer if the retailer was found liable to the child’s parents.
The third-party complaint was served on the manufacturer at its principal place of business in State B, which is located 75 miles from the district court in State C. The manufacturer filed a motion to dismiss the retailer’s third-party complaint for lack of personal jurisdiction.
State C has a long-arm statute that gives its courts personal jurisdiction over out-of-state defendants that are served with process within its borders.
Is the court likely to grant the manufacturer’s motion to dismiss?
A) No, because the manufacturer was served within 100 miles of the district court in State C.
B) No, because nationwide service of process is permitted for impleader.
C) Yes, because service was made outside of State C.
D) Yes, because service of process was beyond the jurisdiction of State C’s long-arm statute.
A) No, because the manufacturer was served within 100 miles of the district court in State C.
The “100-mile bulge rule” establishes personal jurisdiction over a party
(1) added to the suit through impleader or required joinder and (2) served with process within 100 miles of the federal court where the suit is pending.
A manufacturer from State A invented a new type of communication device. A competitor from State B built a device of its own that exactly replicated the manufacturer’s device. Once the manufacturer learned of the competitor’s device, it brought suit in federal district court against the competitor for patent infringement under federal law. The manufacturer claimed $75,000 in total damages as a result of the infringement.
What law should the district court apply to the manufacturer’s claim?
A) State substantive and procedural law.
B) State substantive law and federal procedural law.
C) Federal substantive law and state procedural law.
D) Federal substantive and procedural law.
D) Federal substantive and procedural law.
Federal courts must apply federal procedural and substantive law to claims arising under federal-question jurisdiction.
A plaintiff filed a negligence action against a defendant in federal court on the basis of diversity jurisdiction. The plaintiff’s complaint alleges the defendant was negligent for failing to discover and repair a torn carpet at the defendant’s home. The plaintiff seeks damages for personal injuries he suffered when, as a guest at the defendant’s home, he fell as a result of the torn carpet.
Shortly after the plaintiff filed his complaint, the forum state’s highest court held that a social guest is a licensee, not an invitee, and therefore is not owed a duty of reasonable inspection by a landowner. The federal judge overseeing the plaintiff’s case strongly disagrees with this ruling and has learned that the modern trend adopted in many states is to require a duty of reasonable inspection for both licensees and invitees.
Is the judge required to follow the state’s highest court ruling?
A) No, because the matter is being heard in federal court, rather than state court.
B) No, because the matter is substantive, rather than procedural.
C) Yes, because the judge is bound by the ruling of the forum state’s highest court.
D) Yes, because the decision by the state’s highest court was issued after the plaintiff filed suit in the current case.
C) Yes, because the judge is bound by the ruling of the forum state’s highest court.
Federal courts sitting in diversity must apply federal law to procedural issues (e.g., filing deadlines) and state law to substantive issues (e.g., elements of a claim or defense).
A federal court interpreting state substantive law must follow the rulings issued by the state’s highest court.
An air-freight handler had a four-year contract with an airport in a neighboring state to handle all air freight for the airport. The contract represented 80 percent of the air-freight handler’s total business. Two years into the contract, the airport accepted an offer from another company to handle the business at two-thirds of the price of the contract with the air-freight handler. The airport notified the air-freight handler in writing that it had executed a contract with the other company and would be cancelling its contract with the air-freight handler. The air-freight handler brought suit in federal district court under diversity jurisdiction seeking injunctive relief to enforce the contract.
Is the court likely to grant the air-freight handler’s request for a preliminary injunction?
A) No, because monetary damages are potentially available to the air-freight handler.
B) No, because the complaint is premature, as the airport has not yet acted on its threat to breach the contract.
C) Yes, because the loss of 80 percent of its business constitutes irreparable harm to the air-freight handler.
D) Yes, if the court believes that it is likely that the air-freight handler would prevail in a breach-of-contract action.
A) No, because monetary damages are potentially available to the air-freight handler.
A federal court may grant a preliminary injunction when (1) the movant is likely to succeed on the merits, (2) the movant is likely to suffer irreparable harm in the absence of relief, (3) the balance of equities is in the movant’s favor, and (4) the injunction is in the best interests of the public.
Here, handler will not suffer irreparable harm if its request for injunctive relief is denied. That is because monetary damages can adequately compensate the handler for any revenue loss caused by the airport’s breach.
A bicyclist sued a motorist in federal court sitting in diversity jurisdiction for damages resulting from an accident. The complaint alleged that the accident was caused by the motorist’s negligence and sought damages in a specific amount. In his answer, the motorist specifically denied allegations in the complaint that related to his liability but did not address the allegations relating to damages sought by the bicyclist. Consequently, the bicyclist contends that the motorist has conceded the issue of damages.
Is the bicyclist correct?
A) No, because the failure to deny an allegation relating to the amount of damages does not deem that allegation admitted.
B) No, because in a tort action, the denial of allegations relating to liability is treated as a denial of allegations relating to damages.
C) Yes, because, as the defendant specifically denied allegations relating to liability, failure to deny the allegations relating to damages is treated as an admission.
D) Yes, because an allegation in the plaintiff’s complaint is deemed admitted if not denied by the defendant.
A) No, because the failure to deny an allegation relating to the amount of damages does not deem that allegation admitted.
Damages-related allegations cannot be admitted by the defendant’s failure to deny them in an answer.
A plaintiff filed a civil action against a defendant in federal district court on July 1. On July 6, before the defendant filed an answer, the plaintiff served him with an amended complaint that included causes of action that arose after the date of the initial filing. The court ordered the defendant to respond by July 15. On July 18, the defendant filed an answer to the amended complaint.
Has the defendant filed a timely answer?
A) No, because the court ordered that he respond by July 15.
B) No, because the original filing occurred on July 1.
C) Yes, because he responded within 14 days of the service of the amended pleading.
D) Yes, because the response time began running on July 6
A) No, because the court ordered that he respond by July 15.
responding party generally must respond to an amended pleading within
1) the time that remains to respond to the original pleading or 2) 14 days after service of the amended pleading—whichever occurs later
Unless a court orders otherwise
An employee from State A brought an action under Title VII of the Civil Rights Act of 1964 against her corporate employer in federal court for racial discrimination, seeking $60,000 in damages. The employee alleged that the corporate employer had denied her a promotion for which she was clearly qualified, solely on the basis of her race. The corporate employer was incorporated and headquartered in State B, but its main physical presence was in State A. The employee sought to join an additional claim for breach of contract against the corporate employer based on a separate business transaction entered into between the employee and the corporate employer. The employee alleged $15,000 in damages arising from the breach.
Can the court hear the employee’s breach-of-contract claim?
A) No, because state courts have exclusive jurisdiction over state-law claims.
B) No, because the claim falls outside of the court’s subject-matter jurisdiction.
C) Yes, because the claim falls within the supplemental jurisdiction of the court.
D) Yes, because the employee may aggregate all claims against the corporate employer to meet the amount-in-controversy requirement.
B) No, because the claim falls outside of the court’s subject-matter jurisdiction.
A federal court will generally exercise supplemental jurisdiction over a claim that falls outside of its original subject-matter jurisdiction if it shares a common nucleus of operative facts with a claim that arises within the court’s original subject-matter jurisdiction.
Here, federal-question jurisdiction exists over the employee’s Title VII employment-discrimination claim (federal law) but not her breach-of-contract claim (state law). And though the opposing parties are citizens of different states (States A and B) and the employee can aggregate her claims ($15,000 + $60,000), ***AIC does not exceed $75,000 **
The purchaser of a condominium unit properly filed an action in a federal district court in State A to void the sale of the unit on the basis of fraud. Prior to filing an answer, one of the defendants to this action, the lender, responded by filing a motion to dismiss the complaint for lack of personal jurisdiction, alleging that it had never been to State A and had no connections there. The court granted this motion. Subsequently, the lender brought suit in a federal district court in State B against the purchaser to collect on the note that the purchaser had given the lender. The purchaser has filed an answer asserting that the lender’s claim is barred.
Assume that the lender’s claim arose out of the same transaction as the prior action by the purchaser.
Is the purchaser’s defense valid?
A) No, because the lender did not file a pleading in the prior action.
B) No, because the lender’s claim would not have been a compulsory counterclaim in the prior action.
C) Yes, because the failure to raise a counterclaim in a prior action bars the assertion of that claim in a subsequent action.
D) Yes, because the lender’s claim should have been raised as a counterclaim in the prior action.
A) No, because the lender did not file a pleading in the prior action.
A compulsory counterclaim must be asserted in the defendant’s answer or the counterclaim is waived UNLESS the action is dismissed before the defendant files an answer.
In which case the compulsory counterclaim is not waived and can be raised in a future lawsuit.
Three tenants in a small local mall filed suit in state court against the owner of the mall based on fraud. The three tenants seek to represent all 20 tenants in the mall and have filed a motion to certify the case as a class action. The state rule regarding class actions is identical to Federal Rule of Civil Procedure 23. The tenants seek both monetary damages and injunctive relief stemming from misrepresentations regarding estimated taxes and maintenance and utility charges that appeared in a standardized form provided to each mall tenant.
After the hearing on the tenants’ motion, the court made the following factual findings: (1) joinder of all 20 members is practicable; (2) there are questions of fact and law common to the class; (3) the claims of the three tenants are typical of the claims of the class; and (4) the three tenants and their lawyer will fairly and adequately protect the interests of the class.
Of the following basic requirements for the three tenants to sue as representatives of all of the tenants, which has NOT been satisfied?
A) Numerosity.
B) Commonality.
C) Typicality.
D) Adequacy of representation.
A) Numerosity.
The class is so numerous that joining all the members as named plaintiffs is impracticable (usually met when there are over 40 members)
Here, the court found that the class of 20 members was not so numerous that joining all of them as named plaintiffs to the lawsuit was impracticable
Five plaintiffs filed a class action against an insurance company in federal court, contending that the company had violated state consumer-protection laws. With one exception, all of the named plaintiffs were citizens of the forum state. The plaintiff who was not a citizen of the forum state was a citizen of the same state in which the company was incorporated and had its principal place of business. The plaintiffs, on behalf of 85 total class members, sought damages of $10 million. The company has moved to dismiss for lack of subject-matter jurisdiction. The plaintiffs contend that the court has jurisdiction under the Class Action Fairness Act (CAFA).
How should the court rule on this motion?
A) For the plaintiffs, because the amount in controversy exceeds $5 million.
B) For the plaintiffs, because only minimum diversity is required under CAFA.
C) For the company, because there are only 85 class members.
D) For the company, because a cause of action based on state law cannot be brought in federal court.
C) For the company, because there are only 85 class members.
CAFA = requires at least 100 class members
A woman from State A brought an action for sexual harassment under Title VII of the Civil Rights Act of 1964 against her employer from State B in federal district court in State B. In addition to an injunction, the woman sought $50,000 in damages. During discovery, the employer sought to take the oral deposition of the woman’s psychiatrist, limiting its questioning exclusively to conversations with the woman during scheduled appointments. Although not set forth by statute or in the Federal Rules of Evidence, federal courts have recognized a common-law privilege protecting confidential communications between a psychiatrist and a patient from disclosure. State B does not recognize this privilege. After learning of the intended deposition, the woman sought to assert the privilege and prevent the deposition.
Must the court recognize the privilege?:
A) No, because the court must apply the law of the state in which it is located.
B) No, because there is no federal statute or rule on point.
C) Yes, because federal common law applies to claims arising under federal law.
D) Yes, because it is a substantive issue, not a procedural one.
C) Yes, because federal common law applies to claims arising under federal law.
When a claim arises under federal-question jurisdiction, federal courts must apply federal law, including federal common law, to procedural and substantive issues.
A plaintiff brought a breach-of-contract suit against a defendant in a federal district court sitting in diversity jurisdiction. In a deposition of the defendant, the defendant revealed the existence of a letter that is relevant to his defense, which he says is in the possession of his supplier, an unrelated company. The defendant did not produce the letter as part of his required initial disclosures. The plaintiff served a subpoena duces tecum on the supplier, instructing the supplier to make the letter available to the plaintiff for inspection and copying.
What is the most likely result?
A) The defendant is subject to sanctions for not producing the letter referenced in his deposition.
B) The defendant is required to supplement his initial disclosures by producing the letter referenced in his deposition.
C) The supplier need not provide the letter for inspection and copying because it is not a party to the litigation.
D) The supplier is required to produce the letter for inspection or copying by the plaintiff.
D) The supplier is required to produce the letter for inspection or copying by the plaintiff.
When a nonparty possesses a document or item that is relevant to a lawsuit, a party may issue a subpoena to compel the nonparty to produce the document or item
A party may be compelled to produce documents or items via RFP
A plaintiff sued a defendant for personal injuries resulting from negligence in a federal district court sitting in diversity jurisdiction. The plaintiff alleged that she had been crossing at a crosswalk when the defendant ran a red light at an intersection and hit her with his truck, causing injuries. Although the plaintiff provided the defendant with relevant medical records during discovery, the defendant filed a motion to compel the plaintiff to submit to a physical examination, citing the need to verify the plaintiff’s injuries. The plaintiff has opposed the examination as intrusive.
How should the court rule on the defendant’s motion?
A) Deny the motion, because the court can only order a physical examination with the consent of the party to be examined.
B) Deny the motion, because the plaintiff produced relevant medical records during discovery.
C) Grant the motion, because a physical examination is permitted upon request of the defendant.
D) Grant the motion, because the plaintiff has placed her physical condition into issue.
D) Grant the motion, because the plaintiff has placed her physical condition into issue.
The court where a lawsuit is pending may order a physical or mental examination of a party when
(1) that party’s condition is in controversy,
(2) the motion is based on good cause, and
(3) the order provides notice specifying the time, place, manner, conditions, and scope of the exam, as well as the person who will perform it.
Here, the plaintiff has alleged that her personal injuries resulted from the defendant’s negligence, thereby placing her physical injuries in controversy and providing the defendant with good cause for a physical examination
Note: The plaintiff’s compliance with the request for medical records does not preclude the defendant from also requesting that the plaintiff undergo a physical examination.
In a negligence action properly before a federal district court sitting in diversity, the court submitted the case to the jury. The jury’s decision, which took the form of a written special verdict, was read aloud by the court clerk in open court. The verdict stated that both parties were negligent and that both parties’ negligence proximately caused the plaintiff’s injuries. The verdict also stated that the plaintiff had suffered damages of $1 million and was 10% at fault for his injuries. The court then asked the jury collectively if this was their verdict and they responded in unison, “Yes.” The defendant requested that the jury be polled. When questioned individually, a juror tearfully stated that the verdict was not her verdict because she did not believe that the defendant had been negligent. Upon further questioning, she maintained this position. The other seven jurors affirmed the verdict. The defendant moved for a new trial.
Is the court likely to grant the defendant’s motion?
A) No, because at least six jurors agreed with the verdict.
B) No, because a juror cannot recant a special verdict once it has been read aloud by the court clerk in open court.
C) Yes, because the court must order a new trial when polling the jury reveals that the verdict is not unanimous.
D) Yes, because one juror did not affirm the special verdict as hers.
D) Yes, because one juror did not affirm the special verdict as hers.
A court must on a party’s request, or may on its own initiative, poll the jurors individually after a verdict is returned but before the jury is discharged. If the poll reveals that the verdict is not unanimous, the court can direct the jury to deliberate further or order a new trial.
A mother purchased an organic, soybean-based mattress for her baby’s crib. Soybean-based mattresses allegedly provide a safer, more natural sleeping environment for young children. After a few months of use, the mother’s baby developed a lung infection. The mother sued the mattress manufacturer under a products liability theory in federal court, and the jury’s verdict awarded her $280,000 for the baby’s medical bills and pain and suffering. Through a clerical error, the judgment entered reflected an award of only $250,000. After the manufacturer filed an appeal of the judgment and the appeal was docketed with the appellate court, the mother discovered the mistake. The mother filed a motion with the trial court to correct the judgment award.
Can the trial court make the correction?
A) No, because such a correction can only be made with leave of the appellate court.
B) No, because the mother’s attorney should have verified the judgment amount.
C) Yes, because a court may correct a clerical mistake on its own initiative.
D) Yes, because the mother filed a motion to correct the clerical mistake.
A) No, because such a correction can only be made with leave of the appellate court.
A district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record. The court may do so on its own initiative (i.e., sua sponte) or pursuant to a party’s motion before an appeal from the judgment or order is docketed.
But after an appeal is docketed, the district court can correct the mistake only with the appellate court’s leave (i.e., permission).
A man was severely injured when a manufacturer’s ladder malfunctioned. The man filed suit against the manufacturer in federal district court under diversity jurisdiction, alleging that the ladder was defective. After a long trial, judgment was entered for the manufacturer on April 1. In March of the following year, new evidence emerged indicating that the manufacturer had been aware that the ladders were defective but had nevertheless allowed them to be distributed to retail stores. This evidence was not discovered earlier despite the best efforts of the man’s attorney. On the following April 15, the man filed a motion for relief from judgment.
Should the court grant the man’s motion?
A) No, because the court must order a new trial.
B) No, because the motion was not timely.
C) Yes, because enforcement of the judgment would likely result in injustice.
D) Yes, because of the newly discovered evidence that could not have been discovered earlier with reasonable diligence.
B) No, because the motion was not timely.
A party may obtain extraordinary relief within one year of the entry of a final judgment based on
1) mistake, inadvertence, surprise, or excusable neglect,
(2) newly discovered evidence, or
(3) an opposing party’s fraud, misrepresentation, or misconduct.
A jury found for the plaintiff in a defamation action in federal district court against a newspaper publisher. Following the verdict, the newspaper publisher moved for a new trial on the ground that the verdict was against the weight of the evidence. The court granted the motion. The plaintiff wants to immediately appeal the court’s order granting the new trial.
Which of the following is most accurate concerning immediate appeal of the court’s order?
A) Immediate appeal is available if the appeal is filed with the circuit clerk within 14 days after the order is entered.
B) Immediate appeal is not available because the basis of the motion was that the verdict was against the weight of the evidence.
C) Immediate appeal is precluded by the final-judgment rule.
D) The plaintiff may appeal the order as of right.
C) Immediate appeal is precluded by the final-judgment rule.
Final judgment rule: a federal appellate court generally has no jurisdiction to hear an appeal until the district court has issued a final judgment—i.e., a decision that fully resolves the dispute on the merits.
BUT interlocutory appeals statute allows certain orders to be appealed before the entry of a final judgment.
A professional soccer team purchased equipment from a sporting goods manufacturer on credit. When the team failed to make timely payments, the manufacturer brought an action in federal district court to recover the unpaid balance due. Prior to trial, the team and the manufacturer arrived at a settlement agreement under which the team gave the manufacturer a promissory note. Based on this settlement agreement, the court dismissed the action with prejudice. Later, when the team failed to make timely payments on the note, the manufacturer brought a second action in the same federal court based on this failure. The team has challenged this lawsuit as being barred by the prior action.
How should the court rule on the manufacturer’s second action?
A) Dismiss the action, because the prior action had been dismissed with prejudice.
B) Dismiss the action, because the same parties are involved in both actions.
C) Permit the action, because the prior action did not result in a final judgment.
D) Permit the action, because the prior cause of action was different from the cause of action in the current case.
D) Permit the action, because the prior cause of action was different from the cause of action in the current case.
Although both claims arose from the team’s failure to make timely payments, they are not identical because the second action arose after the first action.
Two business partners, who were citizens of neighboring states, entered into an agreement in which one partner would pay 70% of the initial start-up costs of a new solar energy business, while the other would pay 30% up front and repay 20% to the other partner after two years. The parties signed a promissory note outlining this agreement. After the two-year term outlined in the agreement had passed, the debtor-partner had not paid anything to the creditor-partner, so the creditor-partner appropriately filed suit in federal district court based on diversity jurisdiction.
The forum state’s partnership statute contains substantive and procedural provisions that vary somewhat from a federal statute that regulates certain lending in the solar energy industry, though the existence of an actual conflict between the statutes is dependent upon the facts of the matter.
How should the court proceed?
A) Apply federal law, because there is a conflict regarding how the matter is handled.
B) Apply federal law, because there is a federal law that addresses the disputed issue.
C) Apply the law of the forum state regardless of whether there is a federal law that addresses the disputed issue.
D) Evaluate the facts to determine whether a conflict between the statutes exists.
D) Evaluate the facts to determine whether a conflict between the statutes exists.
When it is unclear whether an issue before the court is substantive (state) or procedural (federal), the court must determine if there is a conflict between the state and federal law regarding the issue
A plaintiff brought an action in federal district court to compel an owner of real property to sell the property to the plaintiff pursuant to their agreement. The plaintiff, knowing that there was “bad blood” between the owner and the owner’s adult son, approached the son about serving process on the owner. The son readily agreed. Although the plaintiff had intended for the son to serve the owner personally, the son instead served the owner with the summons and complaint by certified mail, which was delivered to the owner at his home.
The procedural rules of the forum state do not permit service by certified mail, but the procedural rules of the state where the owner resides permit such service.
The owner filed a motion to quash service.
How should the court rule on the owner’s motion?
A) Deny the motion, because the plaintiff had intended for the owner to be personally served.
B) Deny the motion, because the procedural rules of the state in which service was made permit service by certified mail.
C) Grant the motion, because the owner was served with process by his son.
D) Grant the motion, because the procedural rules of the forum state do not permit service by certified mail.
B) Deny the motion, because the procedural rules of the state in which service was made permit service by certified mail.
Here, the service rules of the forum state (where the court sits) and where service was made (where the owner resides) are different. But FRCP 4 permits service by following the rules of either state. And since the son served the owner with the summons and complaint by certified mail—a method of service permitted by the rules of the state where service was made—the owner was properly served with process.
A corporation that sells pollution-control chemicals and related equipment brought suit in federal district court under diversity jurisdiction against a former employee for unfair competition under state law. The corporation’s suit was based on information it had been given that the former employee was going to open her own pollution-control business in the state using confidential information of the corporation. After filing the complaint, the corporation moved for preliminary injunctive relief to restrain and enjoin the former employee from competing with the corporation.
Upon receiving notice of the hearing on the motion, the former employee responded by disputing the facts as alleged by the corporation. After a full hearing on the motion for a preliminary injunction, the court concluded that several questions of material fact were in dispute. As a result, it was unclear whether the corporation would ultimately prevail in its suit and that discovery would likely be needed for the corporation to be able to prove its claim.
Should the court issue a preliminary injunction?
A) No, because a court with diversity jurisdiction cannot hear a claim for preliminary injunctive relief.
B) No, because it is unclear whether the corporation will succeed on the merits of its claim.
C) Yes, because the former employee was given notice and received a hearing.
D) Yes, if the corporation is likely to suffer irreparable harm in the absence of a preliminary injunction.
B) No, because it is unclear whether the corporation will succeed on the merits of its claim.
For a preliminary injunction to be ordered, the movant must establish all of these factors:
1) movant is likely to succeed on merits
2) movant is likely to suffer irreparable harm in absence of relief
3) balance of equities favors movant and
4) injunction is in public’s best interests
