Civil Procedure MBE Practice Test 2017
This is a timed quiz. You will be given 60 seconds per question. Are you ready?
Plaintiff was injured in an accident on an interstate highway in his county of residence. The accident involved a truck and three cars in addition to plaintiff's car. Plaintiff brought suit in the federal district court in his district pursuant to diversity jurisdiction. He sued the truck driver and the truck owner, who were from another state. He also included a driver of one of the cars who resided in another state, and the driver of another car who resided in the same state as plaintiff. The amount in damages demanded by plaintiff was over $100,000. The truck company filed a motion to dismiss, claiming that plaintiff did not have diversity jurisdiction. Will the district court judge likely dismiss the complaint, and why or why not?
The exercise of diversity jurisdiction also requires complete diversity, which means that “the citizenship of all defendants must be different from the citizenship of all plaintiffs.” McPhail v. Deere & Co., 529 F.3d 947, 951 (10th Cir. 2008) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)); see Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 553 (2005) (“In a case with multiple plaintiffs and multiple defendants, the presence in the action of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action.”).
A woman was injured when her motorcycle crashed after it failed to handle a sharp turn in the roadway. She had been traveling on a state highway in another state. She suffered grievous injuries. There were no warning signs about the dangerous curve, and visibility was difficult due to overgrown tree branches. She sued the state and its director of highways, claiming negligent maintenance and failure to warn of a dangerous roadway. She claimed that the defendants’ negligence caused her grievous injuries. A jury awarded her a modest sum after a trial. The plaintiff then sued the same defendants in federal court due to diversity jurisdiction and claimed the same injuries from the accident, but alleged that they had gotten much worse since then. The defendants requested dismissal of the second case. Will the federal court judge likely grant the request of the defendants and why?
Claim preclusion, or res judicata, bars the litigation of claims that either have been litigated or should have been raised in an earlier suit. Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th Cir.2004) (quoting In re Southmark Corp., 163 F.3d 925, 934 (5th Cir.1999)). The test for res judicata has four elements: (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions. Id.
A retail salesperson was driving her car at lunch when a man driving an SUV drove through a red light and struck her. The salesperson resided in State A and the accident occurred in State A. The driver of the SUV was employed by a company that was located in State B. The company allowed the employee to take its SUV, which was used most of the time for business purposes, to go home to State A every night and return to work in State B in the morning. The injured retail salesperson sued both the company and the driver in a State A court. The company filed a motion to dismiss claiming that the State A court did not have personal jurisdiction over the company, despite having over its employee. The trial court dismissed the case against the company for lack of personal jurisdiction. Will that decision likely survive on appeal and why or why not?
See Schiavone v. Aveta, 41 A. 3d 861 (Pa.Super. 2012). Employer's decision to provide employee with a vehicle furthered its own pecuniary interests by enabling employee to travel to work and to various job sites from his home in Pennsylvania. Employee acted in the business of employer. Thus, employer's contacts with Pennsylvania, where accident occurred, were not mere "random, fortuitous, or attenuated contacts," or the "unilateral activity of another party or third person." It was activity that occurred consistently and repeatedly over the entire course of employee's employment. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
A former patient sued her surgeon in a federal district court for medical malpractice arising out of an allegedly botched operation. She asked for both compensatory and punitive damages. The law of State A applies, but the State A does not recognize punitive damages in medical malpractice cases. The surgeon moves for summary judgment on the punitive damages count. The surgeon’s motion does not contain any affidavits, discovery or other factual evidence with respect to the punitive damages count. The motion is entitled "Motion for Summary Judgment Regarding Count 2.” It refers to the applicable State A statute, with a request for dismissal. The plaintiff does not respond to the summary judgment motion. Trial is approaching and the defendant surgeon requests a decision. What will the court decide and why?
A court orders summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” See F.R.C.P. 56(c). To survive summary judgment, there must be a “genuine issue as to any material fact.” If there is no genuine issue and “the movant is entitled to judgment as a matter of law,” summary judgment is granted. In this case, the answer is easy because the law precludes punitive damages so that the plaintiff could not allege any facts that would raise an issue of material fact, and most importantly, the defendant is entitled to judgment as a matter of law. See, generally for standards required for summary judgment, Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
In a medical malpractice case, the plaintiff's attorney sends a notice to the defending doctor to appear for her oral deposition. Because the doctor did not appear the first time it was scheduled, the plaintiff sends a subpoena ordering the doctor to attend and to bring her medical file with her. The respective lawyers discussed the matter but did not stipulate to the deposition, although the doctor's counsel have not objected to the scheduling notice. Does the doctor have to attend and bring her records?
Rule 30(a)(1) says that a party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent’s attendance may be compelled by subpoena under Rule 45. Here, none of the exceptions in 30(a)(2) exist, and she must attend or the plaintiff can file a motion to compel her attendance.
Two employees of a large multi-state corporation sued the company for violations of the wage and hour laws of state A, where the two worked and resided. They sued in a state court in state A, and requested class certification on behalf of their co-workers who also worked and resided in State A. The company filed to remove the case to the federal district court in state B based on federal diversity jurisdiction. The plaintiffs objected to removal because they asserted that the company's principal place of business was in State A, which destroyed diversity jurisdiction under the circumstances. The company argued that its principal place of business was in State B, thus creating diversity jurisdiction in the federal court. Which of the following would be the main basis for the court’s determination of where the company had it principal place of business?
The federal diversity jurisdiction statute provides that "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. § 1332(c)(1) See The Hertz Corporation v. Friend, 130 S.Ct. 1181 (2010). The Supreme Court ruled in Hertz that the "principal place of business" for purposes of determining whether there was diversity citizenship was the place where the corporation's officers direct, control, and coordinate the corporation's activities. It is called the corporation's "nerve center." Hertz, 130 S.Ct. 1192. In practice, it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the "nerve center," and not simply an office where the corporation holds its board meetings.
A man was injured when his kitchen oven exploded due to a manufacturing defect. He filed a complaint against the oven manufacturer for personal injury damages. He also added a count for class certification and requested a recall of all similar ovens sold to consumers to stop the danger of physical injury. He created two putative classes: (1) everyone who purchased that model oven who lived in New York, the state where the man resided; and (2) everyone who purchased that model oven who resided in 25 other designated states where the company did business. The manufacturer filed a motion to dismiss the second putative class preliminarily under Rule 12(f) of the Federal Rules of Civil Procedure which allows for the early striking of any immaterial matter from the complaint. Will the federal district court judge likely grant the motion?
Rule 23 of the FRCP governs class actions. The class representative must be part of the class and possess the same interest and suffer the same injury. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550, 180 L. Ed. 2d 374 (2011) (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). See also, Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 360 (3d Cir. 2013) ("It is axiomatic that the lead plaintiff must fit the class definition"). The dismissal of the second claim was upheld.
An owner of a small online startup company sued a competitor for copyright infringement and interference with contract. At trial, the owner's attorney questioned a juror who stated that she had worked for the competitor for 10 years in the past and still did regular part-time work for the company when it was extra busy. However, under questioning she stated that she could hear the case fairly and without prejudice. Can the attorney prevail in a motion to strike the juror for cause?
Where there is still an employment relationship, the courts will presume bias and grant a strike for cause. Vasey v. Martin Marietta Corp., 29 F. 3d 1460, 1468 (10th Cir. 1994); Gladhill v. General Motors, Corp., 743 F.2d 1049, 1050-51 (4th Cir.1984); Francone v. Southern Pacific, 145 F.2d 732, 733 (5th Cir.1944). In these situations, the relationship between the prospective juror and a party to the lawsuit points too directly to bias.
A businessman files a complaint for defamation against a former customer in a federal district court. The businessman sends an adult friend to serve the complaint and summons to the home of the former customer. The friend leaves the papers with a cleaning person who is the only person home, and who has control of the premises for just the several hours while she is there doing her job. The defendant files a motion to dismiss for insufficiency of service of process under Rule 12(b)(5). Assume that state law regarding service of a complaint is the same as Rule 4 of the Federal Rules of Civil Procedure. What is the court's likely decision and reason?
Rule 4( e) provides that the complaint and summons must be delivered to the person individually, or by leaving a copy at the defendant's dwelling or abode with someone of suitable age and discretion who resides there. Clearly, the cleaning person does not reside there and service under these facts is defective.
An investor filed a federal securities fraud complaint against a large public corporation. The defendant filed a motion to dismiss under Rule 12(b)(6) alleging that the complaint failed to state a claim upon which relief could be granted. Due to the need to plead fraud with specificity under Rule 9(b), the district court granted the the dismissal and entered final judgment. Instead of filing an amended complaint as a matter of right under Rule 15(a), the plaintiff had answered the motion by stating that it had “filed all of the facts" that it knew. The plaintiff duly filed a notice of appeal. On appeal, the plaintiff stated that it found the detailed facts that it needed and requested permission to file an amended complaint. Will the court grant the request to amend and what will be its reason?
Following entry of final judgment, a party may not seek leave to amend their complaint without first moving to alter, set aside or vacate the judgment pursuant to either Rule 59 or Rule 60 of the Federal Rules of Civil Procedure. Yuhasz v. Brush Wellman, Inc., 341 F. 3d 559, 569-70 (6th Cir. 2003); Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002). Since the investor never filed a Rule 59 or 60 motion following the district court's entry of judgment, he cannot seek leave to amend on appeal.
Plaintiff filed a personal injury action against a trucking company whose truck rear-ended the plaintiff's vehicle while he was stopped at a stop light. The plaintiff made timely disclosure to the defendants. After 60 days, the plaintiff did not receive any disclosures from defendants. The defendants’ lawyer did not respond to phone calls and letters from plaintiff’s attorney. The plaintiff filed a motion to compel disclosure and the answers to interrogatories, and asked for monetary sanctions compelling the defendants to pay for plaintiff’s expenses and legal fees. Will the court likely grant the motions, and why or why not?
Rule 37 does not require that a motion to compel be completed prior to asking for sanctions. Instead, the rule states only that, "[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." Fed.R.Civ.P. 37(a)(2)(A). The Supreme Court has described the process of weighing the statutory factors in calculating civil penalties as "highly discretionary" with the trial court. Tull v. United States, 481 U.S. 412, 427, 107 S.Ct. 1831, 1840-41, 95 L.Ed.2d 365 (1987).
Plaintiff filed a personal injury action against a trucking company whose truck rear-ended the A prisoner filed a pro se civil rights complaint against the prison, alleging that the authorities had treated him with deliberate indifference. He asserted that he had been beaten and tortured by other prisoners with the knowledge of prison officials, who did nothing to prevent or stop the attacks. The prisoner, however, did not identify any specific prison officials who were involved, nor did he give any details on when and where the beatings took place. The prisoner did not describe his injuries in detail in the complaint, due to the fact that he was waiting for his medical records, which were being held up by the prison. The defendants made a Rule 12 motion to dismiss, which the court granted. The court did not give leave to amend because it felt that plaintiff probably could not obtain all of the facts that he needed to make a well-pleaded complaint. The plaintiff filed an appeal, alleging that he should have been granted leave to amend the complaint. What is the court’s likely decision and why?
Under Rule 15(a), federal courts "should freely give leave [to amend] when justice so requires."[1] In the Court's view, this meant that the standard for granting leave to amend was quite liberal: only in very limited circumstances would a denial of leave to amend be justified. Specifically, the Court found that undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by previous amendment, prejudice to the opposing party, and futility of amendment would support a denial. Absent such special circumstances, it would be an abuse of discretion for a court to deny leave to amend. The Court granted Foman's motion to amend her complaint and remanded the case to the First Circuit for proceedings consistent with its opinion. Foman v. Davis, 371 U.S. 178 (1962).
A woman sued her former employer for sexual harassment. She testified that a supervisor harassed her daily with sexual innuendos, insulting comments, unwanted physical touching, and threats of termination if she did not cooperate. She testified that the harassment was pervasive and continued for many months. She stated that the employer refused to take action, which compelled her to resign. The defendants filed a motion for summary judgment at the end of discovery. They claimed that she was psychologically disturbed, under a psychiatrist's care and that all of her accusations were the fictitious creations of a sick mind. Apparently, because the plaintiff's counsel chose not to respond or file a brief, the court granted the summary judgment motion and dismissed the case. Is the dismissal likely to be upheld by the Circuit Court of Appeals? No, because the refusal of the employer to conduct an investigation into the woman's charges disqualifies the employer from requesting summary judgment. Yes, because a plaintiff who is under the care of a psychiatrist will face a presumption that her testimony is in fact tainted by her mental illness. No, because the motion for summary judgment challenged the plaintiff's credibility, thus raising a material dispute of fact. Yes, because the plaintiff did not file a response to the summary judgment motion, thus allowing a default to be entered against her.
Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U. S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U. S. 242 (1986). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences.Henry v. Gehl Corp., 867 F. Supp. 960 - Dist. Court, D. Kansas 1994. The plaintiff's failure to respond does not therefore eliminate the jury's need to resolve credibility issues. Here, the woman's testimony is specific enough to consist of sexual harassment and the attacks on her credibility are up to the jury to decide, making summary judgment inappropriate.
An investor sued his stock broker company and alleged a civil conspiracy among several employees and an outside party to take advantage of existing customers, including the investor. He alleged that the co-conspirators conducted an insider trading deal for themselves without providing the same information to the investor and the other customers, thus denigrating the customers’ account to the conspirators' own benefit. However, after discovery and presenting his side of the evidence at the jury trial, it was apparent that the investor had been unable to prove a conspiracy or evidence of fraud. The investor testified to his suspicions, which were mainly conclusions without proof. At the close of the investor-plaintiff’s side of the case, what is the likely best strategy that the investment banking defendants can follow?
Federa Rule 50(a) states that if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may enter a judgment as a matter of law. Under Rule 50(a)(2), a motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. Here, the mere suspicions of a plaintiff can not stand as sufficient evidentiary support for the proof needed to prove a conspiracy and fraud. There is no alternative but to enter a final judgment as a matter of law and dismiss the jury.
In a case for sexual harassment, the jury entered a monetary verdict in favor of the plaintiff. She alleged that her supervisor persistently demanded sexual favors in return for promotions, that he had sent her lascivious text messages and semi-nude photos of himself on several occasions. Her complaints were ignored by the employer. The jury believed the plaintiff and returned a verdict for her. The defendants, i.e., the supervisor and the employer company, filed a motion under Rule 59(a) asking for a new trial. Without alleging specifics, the defendants asked the court to recognize that the verdict was against the manifest weight of the evidence. Under these facts, which of the following is the most likely decision and reasoning of the court?
A court may only order a new trial if the jury's "`verdict is against the manifest weight of the evidence, ... or if for other reasons the trial was not fair to the moving party.'" Marcus & Millichap Inv. Servs. v. Sekulovski, 639 F.3d 301, 313 (7th Cir.2011). The moving party cannot just allege a manifest weight of the evidence argument without giving the court specific reasons. Willis v. Lepine, 687 F. 3d 826, 836 (7th Cir. 2012). Here, defendants make only a bald allegation and give nothing to back it up. A motion for new trial should not be granted "simply because the court would have arrived at a different verdict." Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002); U.S. v. 40 Acres, 175 F.3d 1133, 1139 (9th Cir. 1999). A motion based on insufficiency of the evidence can only be granted if the verdict is against the great weight of the evidence or if the jury has reached a seriously erroneous result. Digidyne Corp. v. Data Gen. Corp., 734 F.2d 1336, 1347 (9th Cir. 1984).
A woman employed by a federally funded educational institution filed an employment discrimination and retaliation complaint under Title IX of the Education Amendments of 1972, rather than under Title VII of the Civil Rights Act. The defendant moved for dismissal under Fed. Rule 12(b)(6). The plaintiff moved to amend her complaint. The court ignored the request for amendment and dismissed the case outright. Will that decision of the district court survive appeal?
The right to amend should be unimpeded in these facts. The court committted an abuse of discretion in failing to consider and grant the right to amend at an early stage in the process. See Eminence Capital, LLC v. Aspeon, Inc., 316 F. 3d 1048 (9th Cir. 2003); Foman v. Davis, 381 U.S. 178 (1962).
An employee of a retail chain filed a class action against the company alleging wage and hour violations. The complaint alleged that the plaintiff and other salespersons had to make summary reports after they clocked out each day. They had to type up the reports and submit them to their supervisor each day. The suit claimed an average of 15 hours per week of overtime that went uncompensated. The plaintiff sought to represent about 1,000 sales employees who were required to fill out the forms and who did not get paid for the overtime. The employer filed a motion to dismiss the class action, stating that each case was different to some degree, the amount of wages claimed by each employee would differ, and that the plaintiff could not represent the class properly as required by law. Will the court dismiss the case because there are deviations in the facts of some of the cases?
Fed.R.Civ.P. 23(a)(2) requires commonality, i.e., that there are questions of law or fact common to the class. Rule 23(a)(2) does not require identical claims or facts among class members. Chiang v. Veneman, 385 F.3d 256, 265 (3d Cir.2004). For purposes of Rule 23(a)(2), even a single common question will do. Wal-Mart Stores v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2556 180 L.Ed.2d 374 (2011). However, having “widely divergent facts and legal issues” would not serve the efficient administration of justice. Commonality requires the plaintiff to demonstrate that the class members have suffered essentially the same injury. Their claims must depend upon a common contention which must be capable of classwide resolution—which means that determination of its legal validity will resolve an issue that is central to the decision for all claims in one stroke. Dukes, 131 S.Ct. at 2551. Here, the individual employees may have different losses and some divergent facts, but they are all victims of the same employer policy of making them work overtime, fill in forms, and not get paid.
A former regional manager of a life insurance company sued the parent company for terminating him without cause. He asked the attorney to make sure that he got a jury trial. If a proper demand is not made, the trial will be presided over by the judge without a jury. At the last pretrial conference, well after discovery had closed, the attorney filed for a jury trial. Did the attorney properly preserve the right to jury trial and why or why not? Yes, the plaintiff does not have to ask for a jury trial until the discovery is completed and the last pretrial conference is held.
A party may demand a jury trial by serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served. See FRCP 38(b)(1).
A non-profit organization sued a newspaper publisher in a federal district court for defamation. The paper had run an investigative article claiming the group was a cult that conducted strange rituals and used mind control. The group asked for a protective order pertaining to the publisher's broad discovery requests. It requested an order preventing the newspaper from publishing highly private material about its members and outside contributors, including their financial affairs, obtained during discovery. It asserted the right of religious freedom and of association. It had tried to settle the matter with the paper but failed. In an earlier hearing, the magistrate judge had fashioned a similar protective order but deferred its activation. The paper claimed the right of First Amendment free speech. The trial court issued an order of protection prohibiting publication of the materials, but not if they were discovered later by other independent sources. Did the U.S. Court of Appeals likely uphold the trial court's order?
See Seattle Times Co. v. Rhinehart, 467 US 20 - Supreme Court 1984. Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required. There was a prior finding of potential oppression. The appellate court will affirm the protective order where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.
An elderly woman was vacationing on a cruise ship when she slipped and fell on a slippery substance negligently allowed to build up on a hallway floor. She broke her hip and had to have several operations. The ship's ticket and advertising material used the name Dreamland Cruise Ships. She turned the materials over to her counsel, who filed a lawsuit against Dreamland one month prior to the expiration of the statute of limitations. Notice was sent to the address listed by Dreamland on the ticket, and received by its agents prior to the expiration of the statute. The attorney later received a letter from a company called Power Cruises, Inc., stating that Dreamland did not exist, was a mere unregistered fictitious name, and that the owner was Power Cruises, Inc. The attorney filed an amended complaint 180 days after the expiration of the limitations period, pursuant to FRCP 15(c), listing the correct name. Power Cruises objected, claiming that the statute of limitation had expired and it did not receive notice with the two-year period. What will the court do and why?
See Krupski v. Costa Crociere SpA, 130 S. Ct. 2485, 2493-94 (2010). Here the claims in the amended complaint did directly consist of occurrences contained in and arising out of those mentioned in the original complaint. Also, the true party in interest, Power Cruise, in fact knew about the case prior to the expiration of the statute, so that it met all the requirements of Rule 15(c)(1). The only question under Rule 15(c)(1)(C)(ii), then, is whether party A knew or should have known that, absent some mistake, the action would have been brought against him.
A Wildlife Preservation League sued the U.S. Coast Guard to obtain a preliminary injunction to stop certain “war games” being conducted by the Coast Guard. The sonar blasts were allegedly disruptive to natural wildlife and fish populations. The plaintiff could not prove actual injury to wildlife, but did present expert testimony that this was a distinct possibility for the future. There was uncontested testimony by the Coast Guard indicating an increase in crime if the games were closed. The lower courts approved a preliminary injunction stopping the games until further order. This was based on the growing possibility that the wildlife would be disrupted and/or displaced. The Coast Guard appealed and the U.S. Supreme Court agreed to hear the appeal. Is it likely that the Supreme Court will uphold the injunction, and why or why not?
See Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 377-78 (2008). In the makeup of the court in 2008, national defense interests outweighed wildlife concerns. Also, the Court held that the possibility of irreparable harm was too easy of a standard and that it had to be “likely” that harm to wildlife would be irreparable.
An elderly married couple were shopping in a large retail super center. The husband fell on a yellow sticky substance resembling floor wax. Wife saw that there was some kind of hazardous condition ahead, but was quickly disoriented by seeing her husband on the floor in pain several yards ahead. She stepped forward onto the substance and immediately fell on her side, breaking her hip. After extensive rehabilitation and complex hip replacement surgery, the wife sued the retailer. The complaint alleged negligence in maintaining the premises. After these and other facts were pinned down in discovery, the store filed a motion for summary judgment, alleging that the wife voluntarily assumed the risk of the dangerous condition by knowing that it was there and voluntarily proceeding into it anyway. Will the store likely win the motion for summary judgment under these facts?
See Didier v. JC Penney Co., Inc_., 868 F. 2d 276, 281(8th Cir. 1989). It is doubtful that wife had a reasonable opportunity to deliberately elect to subject herself to the danger because she was in an emergency before she realized the extent and nature of the danger. She faced a sudden peril or emergency not of their own making, and had less of an opportunity to make an intelligent choice because of the element of surprise. The court will not find that the wife voluntarily assumed the risk as a "as a matter of law." Instead, this type of inquiry is a textbook example "of an issue of fact" inappropriate for determination through summary judgment.
A land owner sued a purchaser of the land for breach of contract in not performing on their sales agreeement as of the last day set for closing. The defendant filed a counterclaim, alleging fraud by plaintiff in certain claims about the property, which greatly diminished the value, and requesting certain business loss damages, along with a refund of down payment funds. Six months later, the same defendant-purchaser of the land filed a complaint against the land owner, claiming fraud on two adjoing tracts of land that were allegedly negotiated around the same time as the origninal agreement between the parites. The purchaser included a promissory note to the complaint that allegedly superceded the original note listed in the first lawsuit and was signed a few days later. The purchaser's new, separate lawsuit claimed additional fraud damages against the land owner and return of additional funds being held by him. Can the second action by the purchaser be maintained or should it have been included with the counterclaim filed in the first case?
Rule 13(a) defines compulsory counterclaim. A pleading must include a counterclaim that arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. If it is not raised with the other claims, it is forever barred. The purpose is to cut out duplicative litigation. The Ninth Circuit applies the "logical relationship test" which "analyze[s] whether the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit." Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 1246, 1249 (9th Cir. 1987) (quoting Harris v. Steinem, 571 F.2d 119, 123 (2d Cir. 1978)) Here, the relationship is so close in subject matter and time that the second lawsuit should not be allowed and the purchaser should have raised it in the first case.
A security guard sued his former employer for terminating his employment in violation of age discrimination laws under the state law where guard resided and the termination took place. The defendant files to remove the case to federal court based on the primacy of the federal Age Discrimination Enforcement Act. Will the district court allow the removal or remand the case back?
See Carpenter v. Wichita Falls Independent School Dist., 44 F. 3d 362, 366, 367-68 (5th Cir. (1995). There must be federal subject matter jurisdiction. Garrett v. Commonwealth Mortgage Corp. of Am., 938 F.2d 591, 593 (5th Cir.1991). To support removal, the defendant bears the burden of establishing federal jurisdiction over the state-court suit. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921). Removal faces significant federalism concerns. Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809, 106 366*366 S.Ct. 3229, 3233, 92 L.Ed.2d 650 (1986), which mandates strict construction of the removal statute. Here, there appears to be a solid independent grounds for age discrimination.
A student sued his university for failing to deliver the quality of education promised in its catalogue. There is a count also for fraudulent misrepresentation of the quality, content, and accuracy of the courses offered, along with fraud regarding the qualifications of the teachers. The university filed an answer denying responsibility and listing various affirmative defenses. Two months later, the university filed a third-party complaint against a private benefactor who had pledged $20 million for the current and last two operating years, but who had not lived up to her pledge. The university, as the third-party plaintiff, claimed that the benefactor is or may be liable to it for all or part of the claim. The benefactor filed a motion to dismiss the third-party complaint. What will the court likely do and why?
Federal Rule 14(a)(1) requires that the third-party plaintiff (the original defendant) obtain leave of court if it files the third-party complaint more than 14 days after filing its answer. In this case, the defendant waited months to file the the third-party complaint, making it subject to a motion to dismiss by the third-party defendant (the benefactor).
An online company has sued a competitor for trademark infringement in federal court. The company has made some broad discovery requests, which are being refused by the competitor. The Court issues a date for a scheduling conference. After the scheduling conference, which of the following appears to be the most appropriate subjects for a scheduling order, considering the mandates of the Federal Rules of Civil Procedure?
See FRCP 16(b). After consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference, the Court must issue and Order within the time specified in the Rule. The Order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. There are several other permissible functions listed in Rule 16(b).
A severely injured passenger sued the driver of the car (defendant 1) that crashed into the car she was riding in at the time of the accident. She also sued the driver of the car she rode in (defendant 2), claiming that both drivers were negligent in the accident. Defendant 2 wants his attorney to sue defendant 1 for contribution because he is insistent that the other vehicle was totally responsible and liable for all damages. Which of the following would be more appropriate for defendant 2 to file under the circumstances?
Rule 13(g) is a Crossclaim Against a Coparty. It allows that a pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.
A bank sues a homeowner in a civil foreclosure action. The homeowner does not respond and a judgment is entered in favor of the bank. Several months later, the bank files to execute on the judgment and set a date for a sheriff's sale. Due to backlogs, the sale will take place in six months, which will be well over one year from the date of entering the judgment. The homeowner hires an attorney on the same day that the request for sheriff's sale is filed by the bank. The attorney immediately files a motion for relief from the Order under Rule 60(b). The homeowner alleges as grounds for relief that the bank committed fraud and used "robo-signing" methods whereby the person allegedly signing the foreclosure papers did not actually sign them, making the judgment void. The defendant objects on the basis that the motion was not filed within a reasonable time. Will the court likely rule that the motion was filed too late?
Rule 60(b) (1) may relieve a party from a judgment on the following grounds: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. The request must be made within one year for the first three grounds above. This motion was made less than one year after the entrance of judgment, even though the sheriff's sale will be held over one year from the entrance of judgment.
A man has a residence and is domiciled in State A. He sues a former friend who is a resident and domiciliary of State B in a federal district court in State A on the grounds of a civil assault that occurred in State A. The plaintiff is a U.S. citizen and the defendant is a citizen of France who is lawfully admitted for permanent residence in the United States. The man claims damages in excess of $100,000. Does he have federal diversity jurisdiction under Section 1332(a) in State A to bring the civil assault complaint, and why or why not?
Section 1332(a) sets forth the qualifications for diversity jurisdiction. The applicaple provision at 1332(a)(2) says that diversity is allowed for: citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State. Because the former friend is a citizen of a foreign state, there is diversity. However, the former friend is also a citizen of a foreign state and admitted for lawful permanent residence. This will not change the diversity permission unless the former friend is also a domiciliary of the same state as the plaintiff. That is not true here so that diversity is allowed because the defendant is a citizen of France, a lawful permanent resident, and not a domiciliary of the same state as the plaintiff.
A man who works and resides in State A is injured seriously while using a defective lawn mower. The mower was made in State B where the manufacturer has a large manufacturing plant. The manufacturer is incorporated in State C where it has a registered agent and receives lawsuits and service of process. The manufacturer does business in State A but is headquartered, controlled and has its “nerve center” in State D. The man sues the manufacturer in a federal court in State A on a products liability tort claim. The complaint alleges serious and permanent injuries, a permanent disability, and damages in excess of $75,000. Leaving aside any potential questions of venue, is there subject matter jurisdictional authority for the case to be filed in State A and what is the reason for or against it?
A federal court must have at least one of three types of subject matter jurisdiction: (1) under a federal statutory grant; (2) federal question jurisdiction under 28 U.S.C. § 1331; or (3) diversity jurisdiction under 28 U.S.C. § 1332. (1) and (2) do not apply here because this is a state law tort case. Under (3), diversity jurisdiction is where (1) the amount in controversy exceeds $75,000, exclusive of interests and costs, and (2) the parties are citizens of different states. A corporation is a citizen of the state of incorporation and also of the state where it has a principal place of business. 28 U.S.C. § 1332(c)(1). The “principal place of business” is where the corporation's high level officers direct, control, and coordinate its activities, which is often called its `nerve center.' Hertz Corp. v. Friend, 559 U.S. 77, 130 S.Ct. 1181, 1189-90, 175 L.Ed.2d 1029 (2010). Here, the man is domiciled in, and a citizen of, State A where he works and resides. The manufacturer is a citizen of State D, where it has its nerve center and of State C where it is incorporated. Thus, the man and the company are citizens of different states.