Civil Procedure Flashcards

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?

Answer: Yes, the plaintiff and one of the defendants are from the same state, which destroys federal diversity jurisdiction.

Federal diversity jurisdiction requires complete diversity, meaning no plaintiff can be a citizen of the same state as any defendant. In this case, the plaintiff and one of the car drivers are both residents of the same state. This lack of complete diversity, despite the amount in controversy being met and other parties being diverse, destroys federal subject matter jurisdiction, requiring dismissal.

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?

Answer: No, because the computation of time shows that the motion for relief was filed under one year from the date of entering the judgment.

Federal Rule of Civil Procedure 60(b) allows a party to seek relief from a final judgment. Motions alleging fraud (Rule 60(b)(3)) must be made within a reasonable time, but no later than one year after the entry of judgment. Although the sheriff's sale was set for 'well over one year' from judgment, the homeowner's attorney filed the motion for relief on the same day the bank requested the sale, which the question implies was still within the one-year period for filing such a motion. Therefore, the motion is likely considered timely under Rule 60(b).

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?

Answer: The court will allow the amended complaint to relate back because all of the conditions of Rule 15(c)(1) were met and satisfied.

Federal Rule of Civil Procedure 15(c)(1)(C) allows an amendment changing a party to relate back to the date of the original pleading if certain conditions are met. Here, Power Cruises, Inc. received notice of the action through its fictitious name, Dreamland Cruise Ships, within the Rule 4(m) period for service, and knew or should have known it was the intended defendant. Since the claim arises from the same occurrence and Power Cruises was not prejudiced, all conditions for relation back are satisfied, making the amended complaint timely.

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?

Answer: No, because the wife found herself in a sudden emergency and she did not have a reasonable time and opportunity to elect intelligently whether to take another step.

The defense of assumption of the risk requires that the plaintiff voluntarily and knowingly encountered a known danger. However, the wife's actions were not voluntary in the legal sense, as she was disoriented and reacting to a sudden emergency upon seeing her husband injured. In such a crisis, a person does not have a reasonable time or opportunity to intelligently elect whether to encounter the danger, thus negating the voluntariness required for assumption of the risk.

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?

Answer: No, the plaintiff failed to first file to alter or set aside the judgment in the district court under Rule 59 or Rule 60; it is too late to ask for leave to amend on appeal.

After a district court enters a final judgment, a plaintiff cannot simply amend their complaint as a matter of right under Rule 15(a) or request leave to amend for the first time on appeal. To amend after judgment, the plaintiff must first move in the district court to alter or set aside the judgment under Rule 59(e) or Rule 60(b). Since the plaintiff failed to take this necessary procedural step, the appellate court will not grant the request to amend.

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?

Answer: No, the company benefited from having its employee commute from State A to State B and it is responsible for the acts of its agent.

Personal jurisdiction over an out-of-state company requires sufficient minimum contacts with the forum state such that exercising jurisdiction comports with due process. Here, the company benefited from its employee commuting daily from State A in a company-owned SUV, which was primarily used for business. The accident occurred in State A while the employee was driving this company vehicle, establishing a direct connection between the company's purposeful availment of the forum state and the plaintiff's injury. Therefore, State A has specific personal jurisdiction over the company.

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?

Answer: If a plaintiff has a viable state law claim, he may depend on it alone and thereby defeat attempts at removal.

Under the well-pleaded complaint rule, federal question jurisdiction exists only when a federal question appears on the face of the plaintiff's complaint. A plaintiff is the master of their complaint and can choose to assert only state law claims, even if a federal claim is also available. Unless the federal law completely preempts the state law cause of action, the mere existence of a federal defense, such as federal preemption, does not create federal question jurisdiction and thus does not allow for removal.

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.

Answer: No, the plaintiff can best assure a jury trial by including the demand in the complaint under Rule 38(b)(1). The right can also be assured at later times under the Rule but not as late as after the completion of discovery.

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 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?

Answer: Dismiss the third-party complaint due to it being late and filed without leave of court.

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).

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?

Answer: Yes, because the defendant is a citizen of France and a permanent resident who is domiciled in another state.

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 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.

Answer: No, because the motion for summary judgment challenged the plaintiff's credibility, thus raising a material dispute of fact.

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.

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?

Answer: Yes, because the second case is precluded by res judicata.

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.

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?

Answer: Yes, under Rule 30(a)(1) it may be scheduled without leave of court, and under Rule 45, she may be compelled to appear by a subpoena served on her.

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.

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?

Answer: Yes, because there was already a finding of potential oppression, and the Rules give the trial court wide discretion to fashion an order to protect privacy and religious freedom.

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.

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?

Answer: Yes, there is diversity jurisdiction because the man is domiciled in State A and the manufacturer is incorporated in State C and headquartered in State D, making them citizens of different states.

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.

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?

Answer: No, the right to amend is to be granted liberally and must be given in this instance.

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).

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?

Answer: He can file a crossclaim against the coparty defendant 1.

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.

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?

Answer: In the state where the officers direct, control, and maintain its activities.

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.

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?

Answer: No, because the employer's claim is general and can be taken up later; it appears that the cases are all very similar and they all deal with the same challenged policy of the employer.

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.

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?

Answer: The Order will limit the time to join other parties, the time to amend the pleadings, the time to complete discovery, and the time to file motions. It will also set the limits of discovery, and set dates for pre-trial conferences and trial.

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).