KY Bar Civil Procedure 2 — Questions and Answers
Question 1: A plaintiff from Kentucky sues a defendant from Ohio in federal court for $80,000 in damages arising from a car accident. The defendant moves to dismiss for lack of subject matter jurisdiction. How should the court rule?
- Deny the motion, because diversity of citizenship exists and the amount in controversy exceeds $75,000 (Correct answer)
- Grant the motion, because car accident claims must be brought in state court
- Grant the motion, because the amount in controversy must exceed $100,000
- Deny the motion, because federal courts have jurisdiction over all tort claims
Correct answer: Deny the motion, because diversity of citizenship exists and the amount in controversy exceeds $75,000
Diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity and an amount in controversy exceeding $75,000, both of which are satisfied here.
Question 2: Under the Federal Rules of Civil Procedure, a defendant who wishes to assert lack of personal jurisdiction must raise it at what point or risk waiver?
- In the first Rule 12 motion or responsive pleading, whichever comes first (Correct answer)
- At any time before trial
- At any time, because personal jurisdiction can never be waived
- Only at the final pretrial conference
Correct answer: In the first Rule 12 motion or responsive pleading, whichever comes first
Under Rule 12(h)(1), lack of personal jurisdiction is waived if omitted from an initial Rule 12 motion or responsive pleading.
Question 3: A federal court sitting in diversity in Kentucky must apply which body of substantive law?
- Kentucky substantive law, including its choice-of-law rules (Correct answer)
- Federal common law in all respects
- The substantive law of the state where the defendant resides
- Whichever state's law the judge finds most fair
Correct answer: Kentucky substantive law, including its choice-of-law rules
Under Erie and Klaxon, a federal court sitting in diversity applies the forum state's substantive law, including its choice-of-law rules.
Question 4: A plaintiff files a complaint but fails to serve the defendant within 90 days. Under Rule 4(m), what must the federal court do absent a showing of good cause?
- Dismiss the action without prejudice or order that service be made within a specified time (Correct answer)
- Dismiss the action with prejudice
- Enter a default judgment against the defendant
- Transfer the case to state court
Correct answer: Dismiss the action without prejudice or order that service be made within a specified time
Rule 4(m) requires dismissal without prejudice or an order setting a deadline for service when service is not made within 90 days, unless good cause extends the time.
Question 5: A defendant files an answer, then two weeks later moves to dismiss for improper venue. How should the court rule on the motion?
- Deny it, because the improper venue defense was waived by omission from the answer (Correct answer)
- Grant it, because venue objections may be raised at any time
- Grant it, if the defendant can show prejudice
- Deny it, because venue objections can only be raised at trial
Correct answer: Deny it, because the improper venue defense was waived by omission from the answer
Improper venue is a waivable defense under Rule 12(h)(1) and is lost if not raised in the first responsive pleading or pre-answer motion.
Question 6: In federal court, when must a jury trial demand be served to preserve the right to a jury on a triable issue?
- No later than 14 days after service of the last pleading directed to the issue (Correct answer)
- Within 21 days after the complaint is filed
- At any time before the final pretrial conference
- Within 30 days after discovery closes
Correct answer: No later than 14 days after service of the last pleading directed to the issue
Rule 38(b) requires a jury demand within 14 days after the last pleading directed to the issue is served, or the right is waived.
Question 7: A plaintiff voluntarily dismisses a federal action by notice before the defendant answers. The plaintiff had previously dismissed an identical state court action the same way. What is the effect of the second dismissal?
- It operates as an adjudication on the merits under the two-dismissal rule (Correct answer)
- It is without prejudice, as all voluntary dismissals are
- It is void because a plaintiff may only dismiss once
- It requires court approval to have any effect
Correct answer: It operates as an adjudication on the merits under the two-dismissal rule
Under Rule 41(a)(1)(B), a second voluntary notice dismissal of a claim previously dismissed in any court operates as an adjudication on the merits.
KY Bar Civil Procedure 2
A plaintiff from Kentucky sues a defendant from Ohio in federal court for $80,000 in damages arising from a car accident.
The defendant moves to dismiss for lack of subject matter jurisdiction.
How should the court rule?