Introduction to Jurisdiction- Subject Matter Jurisdiction

Power of the court to decide this type of case

Introduction to Jurisdiction- Personal Jurisdiction
Power of the court to decide the rights and liabilities of this defendant
Introduction to Jurisdiction- Venue
Among the courts that have subject matter and personal jurisdiction, which district(s) have proper
venue

Subject Matter Jurisdiction

Does this court have the power to decide this kind of case?
Federal courts are courts go limited subject matter jurisdiction
State courts are generally courts of unlimited subject matter jurisdiction
Subject Matter Jurisdiction- Pleading SMJ
Basis for federal SMJ must be affirmatively pleaded in every case
If challenged, it must be proved that there is a basis for SMJ
Subject Matter Jurisdiction- Waiver
No waiver for lack of SMJ (Parties cannot agree between themselves to litigate in a court that lacks
SMJ)
Lack of SMJ cannot be waived by failing to object or by affirmative consent
Subject Matter Jurisdiction- Objection to SMJ
Lack of SMJ can be raised by anybody at anytime, including by:
(a) the plaintiff, who choses to go to the wrong court;
(b) The court itself;
(c) Anyone for the first time on appeal
Subject Matter Jurisdiction- Federal Question Jurisdiction- Basis
Exists for a claim that arises under federal law
Subject Matter Jurisdiction- Federal Question Jurisdiction- Well Pleased Compliant
Plaintiff's claim must be based on federal law
Look at the face of the well pleaded complaint
Only the plaintiff's claims count for determining; the existence of a federal defense does not matter
Plaintiff does not need to anticipate or please response to a defense. A federal defense does not count
for federal question jurisdiction, even if it is important
Subject Matter Jurisdiction- Diversity Jurisdiction
Cases between citizens of different states, or citizens of a state and a foreign country, if the amount in
controversy exceeds $75,000, exclusive of interest and costs

Exceptions: probate and domestic relations actions cannot be brought in a federal court under diversity
jurisdiction even if the normal requirements are satisfied

Subject Matter Jurisdiction- Diversity Jurisdiction- Complete Diversity

The diversity statutes requires complete diversity;

Every citizenship represented on the plaintiff's side of the case must be different from every citizenship
represented on the defendant's side;

Does not mean every plaintiff must be diverse from every other plaintiff or that the defendant must be
diverse from every other defendant
Subject Matter Jurisdiction- Diversity Jurisdiction- Minimal Diversity (exception to complete diversity
requirement)
Exists when any plaintiff is diverse from any defendant, even if other plaintiffs and defendants overlap

Permitted in the following situations:

(1) Federal interpleader act (statutory interpleader);

(2) Class actions with claims more than $5,000,000 (Class Action Fairness Act); and

(3) Interstate mass torts if at least 75 natural people have died in one accident and the plaintiffs and
defendants are from many different states

Subject Matter Jurisdiction- Diversity Jurisdiction- Time for determination of diversity

Diversity must exist when the complaint is filed

Does not matter that diversity did not exist when the cause of action arose.

Does not matter that diversity no longer existed when the case came to trial

Subject Matter Jurisdiction- Diversity Jurisdiction- Citizenship of parties- Individuals

Citizens of the state or country of domicile
Can only have one domicile at a time
Subject Matter Jurisdiction- Diversity Jurisdiction- Citizenship of parties- Individuals- Domicile
Must be a citizen of the United States and a domiciliary of the relevant state
Permanent residence= residence + an intent to remain indefinitely (or, with no intent to leave)
Subject Matter Jurisdiction- Diversity Jurisdiction- Citizenship of parties- Aliens (Citizens or Subjects
of a Foreign Country)
Diversity jurisdiction exists for controversies between a citizen of a state and a citizen of a foreign
county
A citizen of a foreign country who has been admitted to the US as a permanent resident is treated as a
citizen of the state in which she is domiciled
Subject Matter Jurisdiction- Diversity Jurisdiction- Citizenship of parties- Representative parties
Generally, the citizenship of the representative controls
Subject Matter Jurisdiction- Diversity Jurisdiction- Citizenship of parties- Representative Parties-
Estate issues
The citizenship of the decedent controls
Subject Matter Jurisdiction- Diversity Jurisdiction- Citizenship of parties- Representative Parties-
Infants/Incompetents
Citizenship of the infant/incompetent controls
Subject Matter Jurisdiction- Diversity Jurisdiction- Citizenship of parties- Class Actions
Citizenship of the named or representatives parties count
Class members not named may join without regard to citizenship
Subject Matter Jurisdiction- Diversity Jurisdiction- Citizenship of parties- Corporations
Can have several citizenships simultaneously

Citizen of:

(1) State, states, or foreign countries in which it is incorporated; and

(2) The state or country where it has its principal place of business

Subject Matter Jurisdiction- Diversity Jurisdiction- Citizenship of parties- Partnerships and

unincorporated associations
Citizen of every state which its members are citizens
Applies to partnerships, limited partnerships, trade associated, and unions
Subject Matter Jurisdiction- Diversity Jurisdiction- Devices to create or destroy diversity
Actions that create or destroy diversity are permitted so long as they are not "shams" or fraudulent
Subject Matter Jurisdiction- Diversity Jurisdiction- Devices to create or destroy diversity- Moving
Permitted, even if it is done with the purposes of affecting diversity, so long as the change in domicile
is genuine, and not sham
Subject Matter Jurisdiction- Diversity Jurisdiction- Devices to create or destroy diversity- Assignment
of a Claim
Permitted so long as the assignment is real (for value) and complete
Partial assignment of a claim for the purposes of debt collection does NOT affect citizenship if the
assignor retains an interest in the claim
Subject Matter Jurisdiction- Diversity Jurisdiction- Amount in Controversy
Must exceed $75,000, exclusive of interests and costs

Only relevant in diversity cases

Any good faith allegation will suffice (NOT whether the plaintiff recovers $75,000)

Only when it appears to a legal certainty that the AIC will not be met, will the court dismiss the case for
lack of AIC

Subject Matter Jurisdiction- Diversity Jurisdiction- Amount in Controversy- Aggregation

Adding up smaller claims to attempt to exceed $75,000
Subject Matter Jurisdiction- Diversity Jurisdiction- Amount in Controversy- Aggregation- One Plaintiff
v. One Defendant
Plaintiff can aggregate all her claims, regardless of whether the claims are related
Subject Matter Jurisdiction- Diversity Jurisdiction- Amount in Controversy- Aggregation- One
Plaintiff. v. Two (or more) Defendants
Plaintiff may not aggregate her claims against multiple defendants
Claims against each defendant must total more than $75,000
Subject Matter Jurisdiction- Diversity Jurisdiction- Amount in Controversy- Aggregation- Two (or
more) Plaintiffs v. One Defendant
Plaintiffs may not aggregate their claims against the defendant

Each plaintiff must be seeking more than $75,000 from the defendant

Subject Matter Jurisdiction- Diversity Jurisdiction- Amount in Controversy- Aggregation-

Supplemental Jurisdiction
Smaller-value claims are sometimes permitted as a matter of supplemental jurisdiction
Subject Matter Jurisdiction- Removal Jurisdiction
Removal moves the case from state court to federal court;
Transfer moves case from one federal court to another federal county
The federal court can abstain from hearing the case (in very narrow circumstances)
Subject Matter Jurisdiction- Removal Jurisdiction- General Rule
Removal is proper ONLY if the case could have been brought originally in federal court
ONLY Defendants may remove
ALL defendants must consent to removal within 30 days of service
If plaintiff had chosen to sue in federal court in the first place, would the federal court have had subject
matter jurisdiction?
Subject Matter Jurisdiction- Removal Jurisdiction- Federal Question
If the well-pleaded complaint disclosed that the plaintiff's claim is based on federal law, then the
defendant may remove to federal court
If the plaintiff claim is based on state law, defendant may not remove to federal court, even if the
defendant has raised a federal defense
Subject Matter Jurisdiction- Removal Jurisdiction- Diversity
Removal is proper only if:

(1) There is complete diversity;

(2) The amount in controversy exceeds $75,000; and

(3) The action is brought in a state of which no defendant is a citizen

Must remove within one-year of the commencement of the action in state court, unless the plaintiff
acted in bad faith to make the case non-removable

Subject Matter Jurisdiction- Removal Jurisdiction- Removal Procedures

A notice of removal is filed with the federal court, with a copy sent to the state court
When the removal notice is filed, the state court's jurisdiction ends instantly and automatically
Subject Matter Jurisdiction- Removal Jurisdiction- Improper Removal (remand)
Plaintiff can file in federal court a petition for remand, and it is on the petition that the federal court
hold a hearing
If removal is proper, remand is denied, and case stays in federal court
If removal is improper, remand is granted, and case goes back to state court
Subject Matter Jurisdiction- Supplemental Jurisdiction
Allows a federal court with subject matter jurisdiction over a case to hear additional claims over which
the case would not independently have jurisdiction if ALL the claims constituted the same case or
controversy.

Claims constitute the "same case or controversy" if they arise out of the same common nucleus of
operative facts.

All the claims arise out of the same transaction or occurrence

Supplemental jurisdiction allows, but does not require, the court to expand its jurisdiction

Decision is within the discretion of the court and its typically made on practical grounds

Subject Matter Jurisdiction- Supplemental Jurisdiction- Federal Question Jurisdiction

Applies whether or not those claims involve the joinder of an additional party
Historically this was called "pendant-party jurisdiction"
Subject Matter Jurisdiction- Supplemental Jurisdiction- Diversity Jurisdiction Cases
State law claims must be part of the same case or controversy

Additionally, the statute bars jurisdiction in diversity cases over:

(1) Claims by plaintiffs against persons made party under Rule 14, 19, 20, or 24;

(2) Claims by parties seeking to intervene as plaintiffs under Rule 24; or

(3) Claims by parties proposed to be joined as plaintiffs under Rule 19

This list basically covers any mechanism for bringing additional parties into the case.

Meaning that if one of the above mentioned claims are raised they need to satisfy diversity
requirements

Claims by defendants are allowed. The logic is that the plaintiff chose the federal forum, whereas the
defendants have more flexibility

Subject Matter Jurisdiction- Supplemental Jurisdiction- Diversity Jurisdiction Cases- Counterclaims

A compulsory counterclaim is one that arises out of the same transaction or occurrence as the opposing
party claims. This means that this claim does not need to satisfy the AIC requirement

A permissive counterclaim is one that does not arise out of the same transaction or occurrence as the
main claim. Can only be heard by a federal diversity court only if it independently satisfies diversity
jurisdiction

Subject Matter Jurisdiction- Supplemental Jurisdiction- Diversity Jurisdiction Cases- Cross Claims
Claim by a co-party (plaintiff v. plaintiff)

To qualify for supplemental jurisdiction:

(1) Must be related to a claim over which the court has subject matter jurisdiction; and

(2) Must not be asserted by a plaintiff against a person made party under Rules 14, 19, 20 or 24

Subject Matter Jurisdiction- Supplemental Jurisdiction- Diversity Jurisdiction Cases- Multiple

Plaintiffs, single defendant (permissive joinder and class action)
If the claim of one diverse plaintiff against a single defendant satisfies the jurisdictional amount, other
diverse plaintiffs who have related claims agains the defendant can also be heard even if their claims do
not satisfy the jurisdiction amount in controversy minimum.
This is because the single defendant has not been made a party under Rule 14, 19, 20 or 24
Supplemental jurisdiction is available on he same logic when multiple plaintiffs do not form a class,
but choose to join together in the same action. If one plaintiff has a claim worth $75k+, the others can
raise claims arising from the same transaction regardless of amount
Subject Matter Jurisdiction- Supplemental Jurisdiction- What to remember
Supplemental jurisdiction works for federal question cases across the board, as long as the additional
claims are related;
In diversity cases, supplemental jurisdiction is broadly available for related claims by defendants but
much more limited for claims by plaintiffs.

OK:

(a) Compulsory counterclaims asserted by defendants;

(b) Cross-claims asserted by defendant, so long as they arise out of the same transaction or occurrence
as the anchor claim; and

(c) Voluntary joinder of plaintiffs for related claims when there is a single defendant

Supplemental jurisdiction in diversity cases does not ever allow you to join a non-diverse party

Personal Jurisdiction
An issue in federal and state court, and rules are generally the same.

Use the long-arm statutes of the states in which they sit

Always ask two questions:

(1) Has the basis for exercising personal jurisdiction over an out-of-state defendant been authorized by
statute or by rule of court? and

(2) Is the particular basis for exercising personal jurisdiction permitted by the due process clause of the
US constitution?

Personal Jurisdiction- Types of Personal Jurisdiction- In Personam

Against the person
Personal Jurisdiction- Types of Personal Jurisdiction- In Rem
Against the thing
Personal Jurisdiction- Types of Personal Jurisdiction- Quasi- In Rem
"sort of" against the thing
Personal Jurisdiction- Constitutional Aspect
Due process requires minimum contracts between the defendant and the forum state such that it is
consistent with traditional notions of fair play and substantial justice to sue the defendant here.

In assessing minimum contacts, courts look for a purposeful availment by the defendant of the
protections of the forum's law.
Contacts between the forum and the plaintiff do not suffice. There must be minimum contacts between
the forum and the defendant. Those contacts must be a result of the defendant's own purposeful actions.
Personal Jurisdiction- Waiver
An objection to lack of personal jurisdiction can be waived

Voluntary litigating on the merits waives any objection to lack of personal jurisdiction (a general
appearance)

A defendant waives any objection to personal jurisdiction by substantial participation on the merits
before raising the objection. This includes almost anything other than challenging jurisdiction
Lack of personal jurisdiction must be raised at the first opportunity or it is waived. If the defendant
chooses to file a pre-answer motion to dismiss she must make the objection then or waive it; or

If the defendant does not file a pre-answer motion, must be raises in the answer

Personal Jurisdiction- In Personam Jurisdiction

Federal courts follow the personal jurisdiction law of the state in which they sit.
Personal Jurisdiction- In Personam Jurisdiction- General in personam jurisdiction
The plaintiff can assert any claims whatsoever, even if it is unrelated to the defendant's contacts with
the forum state
We have an expert-written solution to this problem!
Personal Jurisdiction- In Personam Jurisdiction- Specific in personam jurisdiction
Plaintiff's claims against the defendant must arise out of- or directly relate to- the defendant's contacts
with the forum state
Governed by the state's long arm statute
Personal Jurisdiction- In Personam Jurisdiction- Bases for General In Personam Jurisdiction- Physical
presence within the state
Service of process on the defendant while she is physical present in the state
Personal Jurisdiction- In Personam Jurisdiction- Bases for General In Personam Jurisdiction- Physical
presence within the state- exceptions
If a person was in the state only to answer a legal summons
Person was brought to the state by force or fraud
Personal Jurisdiction- In Personam Jurisdiction- Bases for General In Personam Jurisdiction- Domicile
Domicile is independent of physical presence
This is where one resides with the intent to remain there indefinitely
Personal Jurisdiction- In Personam Jurisdiction- Bases for General In Personam Jurisdiction- Consent
Expressly (Yes) or impliedly (by not raising the issue)
Can be given by contract, as long as the terms are reasonable, or by appointment of an in-state agent for
receiving service of process
Personal Jurisdiction- In Personam Jurisdiction- Bases for General In Personam Jurisdiction-
Corporations
Corporations can consent to personal jurisdiction just like individuals, but the rules regarding physical
presence are different

Merely "doing business" in a state is insufficient to support general jurisdiction

General in personam jurisdiction applies only to corporations that are essentially "at home" in the
forum state:

(1) The state of incorporation; or

(2) The state where the corporation has its principal place of business

It is possible in theory for a corporate defendant's operations in a state to be so continuous and

systematic as to render the corporation essentially "at home" in a state that is not the corporation's place
of incorporation or the states of its principal place of business.

Personal Jurisdiction- In Personam Jurisdiction- Specific In Personam Jurisdiction- Statutes

Every state has a long-arm statute which gives courts in personam jurisdiction over out-of-state
defendants but ONLY for the particular transaction involving that state

Some statutes are very broad and other list specific activities that give rise to jurisdiction

Personal Jurisdiction- In Personam Jurisdiction- Specific In Personam Jurisdiction- Common Bases for
Specific In Personam Jurisdiction
(a) An act or omission in the state causing injury to a person or property;
(b) An act or omission outside the state causing injury to a person or property inside the state, provided
that the defendant conducted activities here or introduced goods into the steam of commerce (w/ the
foresight that the goods would up there);
(c) Any claim arising out of a contract to perform services in the state or to pay someone in the state to
perform services elsewhere, or out of the actual performance of such services;
(d) Any claim arising out of a contract to ship goods to or from the state, or arising out of the shipment
of goods;
(e) A claim regarding local property;
(f) Any action against an officer or director of a domestic corporation for acts taken in that capacity;
(g) Any contract for insurance where the plaintiff was a resident of the state when the claim arose, or
the event giving rise to the claim occurred in that state
Personal Jurisdiction- In Personam Jurisdiction- Specific In Personam Jurisdiction- Federal Exceptions-
Federal Interpleader Act (i.e. statutory interpleader)
Authorizes nationwide service of process
Service anywhere in the United Sates establishes personal jurisdiction
For a federal court, the relevant jurisdiction is the US as a whole, so congress can authorize nationwide
service of process as a means of asserting personal jurisdiction nationwide
Personal Jurisdiction- In Personam Jurisdiction- Specific In Personam Jurisdiction- Federal Exceptions-
The Bulge Provision of the Federal Rules
Allows service anywhere within 100 miles of the federal courthouse, even if in another state for two
situations:

(a) For impleading third-party defendants under Rule 14; and

(b) For joining necessary parties under Rule 19

Personal Jurisdiction- In Personam Jurisdiction- Specific In Personam Jurisdiction- Federal Exceptions-

Unusual Provision
Narrow authorization of nationwide service of process when the plaintiff's claim arises under federal
law and the defendant is not subject to PJ in ANY state court.
Suit may be brought in federal court, so long as there are minimum contacts with the United States as a
whole.
Used rarely; most relevant with foreign defendants with no particular contact with a particular state
Personal Jurisdiction- In Rem
Suit against any kind of property, real or personal, so long as the property is located in the state where
you are suing, and it can settle everyone in the world's claim against that property
May be a piece of land, goods, or intangible like a bank account
Personal Jurisdiction- Quasi In Rem- Old rule
Suit to adjudicate the claim to property of a particular defendant or defendants; the subject-matter of
the suit may or may not be related to the property
Personal Jurisdiction- Quasi In Rem- Present Rule
The Supreme Court has held that quasi-in-rem actions are subject to the same minimum contacts test as
applicable to personam jurisdiction.
When the property is the subject of the suit, it will constitute an important "minimum contact" between
the defendant and the forum, and jurisdiction will probably be permitted as a matter of specific in
personam jurisdiction
When the property is not the subject to the suit, the ownership fo property in the state is not nearly
enough to establish general jurisdiction over the defendant
Service of process- Notice and Service of Process- In General
Means service of a summons on the defendant. This formally gives court jurisdiction over the case and
gives the defendant notice of the action
Federal rules authorize service in accordance with the state law in which the federal court sits. Default
rule is that service in federal court is okay as long as it follows the law of the state in which the federal
court is based or it complies with one of the Federal Rules
Service of process- Notice and Service of Process- Personal Service
Used to assert in personam jurisdiction
Should also be used in rem and quasi-in-rem jurisdiction actions when the location of an interested
party is known
Service by publication is only appropriate for in rem actions when that is the best that the serving party
can do
Constitutional test: notice must be reasonable (in good faith) under the circumstances
Service of process- Notice and Service of Process- Federal Rules allow for service always when
(1) In-hand personal delivery;

(2) Leaving the summons at the defendant's dwelling or usual place of abide with a person of suitable
age and discretion;

(3) Delivery of the summons to an authorized agent; and

(4) For persons in foreign countries, service can be made by certified mail, return receipt requested

Service of process- Notice and Service of Process- Special Rules for Service of Process- Infant (Minor)
Service on the infant and on the parent or guardian

Service of process- Notice and Service of Process- Special Rules for Service of Process- Adjudicated
Incompetent
Service must be made on the incompetent person and the guardian

Service of process- Notice and Service of Process- Special Rules for Service of Process- Partnership
Service on a general partner, an attorney in fact, or authorized agent
Service of process- Notice and Service of Process- Special Rules for Service of Process- Corporations
Service (personal delivery or by mail) on an officer, director, managing agent, or on an agent appointed
for receiving service of process
Service of process- Notice and Service of Process- Special Rules for Service of Process- Non-resident
Motorists
Claims arising out of in-state accidents
Service can be made on a state official (person deemed your agent) who forwards a copy to the out-of-
state defendant
Service of process- Notice and Service of Process- Special Rules for Service of Process- Service of
Process for In Rem and Quasi-in-rem Actions
You must make a diligent effort to locate all claimants to the property and serve them personally
If the claimants cannot be located then notice by publication is permitted
Venue- In General
Where among the courts in this jurisdiction system is the appropriate court to hear the case. Federal
system: whether the district is a proper court to hear this action.
It is the defendant's responsibility to object if venue is improper. Failure to make a timely objection
results in waiver.
Federal law- claim of improper venue must be made at the first opportunity or it is waived. Either a
pre-answer motion to dismiss if the defendant chooses to file one, or the defendant's answer, if no pre-
answer motion is made
Venue- Federal Rule
Federal venue concerns which direct should hear a case
Federal venue is proper in a district:
(a) Where any defendant resides, as long as all defendants reside in that state;
(b) Where the claim arose (where a "substantial part of the events or omissions" on which the claim is
based occurred to where a "substantial part of the property" that is the subject of the action is located);
(c) if neither of the above, any district where the defendant is subject to personal jurisdiction has venue

Federal venue generally does not rest on the plaintiff's residence

Venue- Federal Rule- Residence- Individuals
Domicile
Venue- Federal Rule- Residence- Business Entities
Any business entity (capacity to sue or be sued) resides in every district in which personal jurisdiction
exists
Venue- Federal Rule- Special Provisions
For a case begun in state court and removed to federal court, venue is automatically proper in the
federal district where the state court sits, even if that district would not have been proper originally
Venue- Federal Rule- Transfer (from one federal court to another)
Transfer is only proper to a district with proper venue

Exception: when all parties

A case brought in a district with proper venue may be transferred for convenience to another district
with proper venue

A case brought in a district without proper venue a court may (1) Dismiss or (2) transfer to a district
with proper venue

Venue- Choice of Law- When the original district has proper venue
the law of the first forum applies
Venue- Choice of Law- When the original district does not have proper venue
the law of the second forum applies
Choice of Law: The Erie Doctrine- General Rule
In a diversity case, a federal court applies state substantive law
Choice of Law: The Erie Doctrine- State Substantive Law
The substantive rules that govern conduct (what must be proved to win a case and what defenses may
be asserted);

State statutes of limitations on state causes of action;

The burdens of proof on state claims and defenses; and

State rules on choice of law

States' choice of law rules tend to favor applying their own law. Remember: if a case is transferred, the
law of the first state controls as long as venue is proper in the first court

Choice of Law: The Erie Doctrine- Federal Procedures

Anything covered by the Federal Rules of Civil Procedure is "procedure" for purposes of Erie- federal
law applies, even if the substance of the claim is governed by state law
Choice of Law: The Erie Doctrine- No Federal Statute or Rule on Point
The court must determine whether to follow state law (the matter is deemed substantive) or to follow
federal law (the matter is deemed procedural)
Choice of Law: The Erie Doctrine- No Federal Statute or Rule on Point- The Twin aims of Erie
(1) To avoid forum shopping
Situations in which parties have incentives to choose (or avoid) federal court based on perceived
advantages and disadvantages of federal law versus state law)
(2) To avoid inadequate administration of justice
Situations where there is a different result in state and federal courts, so winning and losing turn in the
accident of diversity of citizenship
Choice of Law: The Erie Doctrine- No Federal Statute or Rules on Point- Two Common Applications
of Erie
(1) If the choice of the procedure would be outcome determinative (change the result), the federal court
should usually apply state law to prevent forum shopping
(2) The role of the jury in federal court is entirely controlled by federal law
Choice of Law: The Erie Doctrine- Federal Common Law
Judge made federal law that overrides (preempts) any inconsistent state or local law or rule
Federal courts make federal common law ONLY when they encounter important federal interests that
are not covered by a statute
Examples when it would apply:
(1) Boundary disputes between states; and
(2) Claim preclusion
Choice of Law: The Erie Doctrine- Determining Applicable State Law
The federal court acts like a lower state court and follows precedent from the highest state court
If there is no precedent, predict how the highest court would rule
Give respectful attention to the decisions of lower state courts (not binding)
Pleadings- Commencement of Proceedings
Federal civil action is begun by filing a complaint with the clerk of court
For diversity actions, state law controls when an action has begun
Pleadings- Types of Pleadings- The Complaint
Used to state a claim for relief
The plaintiff or the defendant may file a claim against a co-party, called a cross-claim complaint
A defendant files a third-party complaint to implied a third-party defendant
Pleadings- Types of Pleadings- The Answer
Filed by the opposing party in response to the complaint
It may contain response to the allegations of the complaint, affirmative defenses, and/or counter-claims
Pleadings- Types of Pleadings- The Reply
Used by a plaintiff to answer a counter-claim
Pleadings- Requirements of a Complaint
A complaint (or any pleading in which a claim is made) must include:

(1) A short and plaint statement of the court's subject matter jurisdiction;

(2) A short and plain statement showing the claimant is entitled to relief; and

(3) A claim for the relief sought by the pleader

Pleadings- Requirements of a Complaint- Claim for Relief

Recovery is not limited by the claim for relief as stated in the complaint, except for default judgments
You get the you prove, not what you ask for
Pleadings- Requirements of a Complaint- Notice Pleading
Historically, pleading was difficult because each kind of claim has its own special rules of pleading,
and the pleading had to match the proof. Litigation was often resolved on the pleading not on the
merits.

One of the chief aims of the Federal Rules of Civil Procedure was to reform pleading.
(a) Standardize pleadings across all civil actions;
(b) Simplify pleading
(c) Shift emphasis from pleading to the merits of the case
Pleadings- Requirements of a Complaint- Notice Pleading- What is required
A pleading need not detail the facts of the plaintiff's case to spell out the legal theory
Must only give fair notice of the pleader's claim
All that is required is a shirt and plain statement of the claim showing that the pleader is entitled to
relief
Pleadings- Special Pleading
No particular form or words
Alleged with particularity/specificity/detail
A woman, who was a long-time resident of State A, decided to go on vacation. Unable to fly nonstop to
her destination, she changed planes at an airport located in State B. While in the waiting area for her
next flight, the woman was served with process in connection with a lawsuit filed against her by her
former business partner. The former partner, who had recently become a citizen of State B, had brought
suit in federal district court in State B under diversity jurisdiction, asserting that the woman had
defrauded him out of his rightful share of the profits of the partnership. According to the complaint, the
fraud took place entirely in State A.

Can the federal district court in State B properly exercise personal jurisdiction over the woman?
(A) No, because the alleged fraud took place entirely in State A.
(B) No, because the woman is a citizen of State A.
(C) Yes, because the former partner is a citizen of State B.
(D) Yes, because the woman was served in State B.

1) D
Can the federal district court in State B properly exercise personal jurisdiction over the woman?
Answer
Example of transient, or tag jurisdiction. Being served process while being physically in the state is
grounds for personal jurisdiction. She was served process in state B, so then there is personal
jurisdiction.
Transient jurisdiction: it does not matter where the claim arose, state A, B, H. Served in state B? Can be
heard. That always allows the court to serve personal jurisdiction.
Exception: traveling through to attend another judicial proceeding
A plaintiff brought suit against a defendant in federal district court alleging that the defendant violated
the Federal Credit Card Protection Act, which creates a private cause of action. The plaintiff also filed a
claim against the defendant for state-law conversion. The claim stems from an incident in which the
defendant allegedly took the plaintiff's credit card from a restaurant table and made $100,000 worth of
purchases using the credit card. The defendant is a citizen of the same state as the plaintiff.

If the defendant moves to dismiss the conversion claim due to lack of subject-matter jurisdiction, will
he prevail?
(A) Yes, because the conversion claim does not present a federal question.
(B) Yes, because the defendant is a citizen of the same state as the plaintiff.
(C) No, because the alleged damages satisfy the amount-in-controversy requirement.
(D) No, because the conversion claim and the Federal Credit Card Protection Act claim arise from a
common nucleus of operative fact.

2) D
If the defendant moves to dismiss the conversion claim due to lack of subject-matter jurisdiction, will
he prevail?
Answer
No, because the conversion claim and the federal credit card protection act claim arise from a common
nucleus of operative fact
Federal Credit Card protection is a federal question, and what to note? There's no amount in
controversy requirement. Doesn't matter where you're domiciled, only matters if it arises under federal
law.
State law conversion claim? No diversity jurisdiction here, amount in controversy is met, but domiciled
in the same state.
Consider then, is there supplemental jurisdiction? Yes, because the state law claim is factually related to
the federal credit card protection act.
So it's D, the conversion claim comes from the nucleus of operative fact, so there's SMJ.
A plaintiff brought an action for negligence in federal district court in State A under diversity
jurisdiction to recover for injuries allegedly sustained in an accident that occurred while he was a
passenger on board a cruise ship in a port in State B. The defendant in the action was a State C
corporation that owned the cruise ship. At the time of the alleged negligence, the ship was docked in
the State B port after finishing a voyage from a port in State A. For several years prior to the voyage on
which the plaintiff was injured, the cruise ship had brought passengers to visit three ports in State A and
had most recently spent several weeks in repair at a shipyard in State A. The State A long-arm statute
authorizes personal jurisdiction over a nonresident defendant if the defendant "does business" in State
A. The phrase "does business" has been interpreted by the highest court of State A to reach as far as is
constitutionally permissible.

If the defendant timely moves to dismiss the action for lack of personal jurisdiction, how is the district
court likely to rule?
(A) Deny the motion, because the defendant has impliedly consented to the court's jurisdiction.
(B) Deny the motion, because the defendant could reasonably anticipate being taken to court in State A.
(C) Grant the motion, because the accident occurred in State B.
(D) Grant the motion, because the defendant is not "at home" in the forum state.

B
If the defendant timely moves to dismiss the action for lack of personal jurisdiction, how is the district
court likely to rule?
Answer
Deny the motion, because the defendant could reasonably anticipate being taken to court in State A.
Specific personal jurisdiction here, requires purposeful minimum contacts, issue arising from those
contacts, fair and reasonable.
Claim is factually related to the departure. But for departing with state A with the plaintiff aboard, the
negligence couldn't have occurred.
Nothing unreasonable, so the defendant could have reasonably predicted it.
Not A, because they didn't file anything or sign something in the state.
A rock star from a foreign country entered into a management agreement with a concert promoter who
was a citizen of State A. According to the terms of the management agreement, the promoter was to
receive a designated percentage of the rock star's total earnings from any concerts performed around
the world. The agreement was negotiated and signed in the foreign country. The rock star subsequently
fired the promoter and hired a new manager. He then appeared in the United States and performed a
concert in State B for which he earned more than $5 million. Following the concert, the promoter filed
suit in federal district court in State B against the rock star, asserting diversity jurisdiction and alleging
that he was entitled to a percentage of the rock star's earnings from the concert due under the original
management agreement. The rock star filed a motion to dismiss the case and appeared in court for his
attorney's argument at the motion hearing. The rock star asserted that the court could not exercise
personal jurisdiction over him because his contacts with State B did not satisfy the "minimum contacts"
requirement for personal jurisdiction over a foreign defendant.
How should the federal district court rule on the rock star's motion to dismiss?
(A) Deny the motion, because the court has jurisdiction over the rock star as a result of his performance
in State B.

(B) Deny the motion, because the rock star filed a motion to dismiss the suit and voluntarily appeared
in court.

(C) Grant the motion, because the negotiations on the management agreement at issue occurred in the
foreign country.

(D) Grant the motion, because the promoter is not a resident of State B.

A, Deny the motion because the court has jurisdiction over the rock star as a result of his performance
in state B

The contacts were fair and reasonable, established minimum contacts when he went and performed, so
the question is: is that contact in state B causally related to the lawsuit? Here, the fact that he
participated in the concert, earned money, and did not fulfill the original management agreement? Is
related to his performance in state B. Without it, he couldn't have breached.
The breach is not paying
A plaintiff sued a defendant in federal district court following a car accident between the parties that
occurred in the state where the federal district court is located. The plaintiff asserted a negligence claim
under state law, and in good faith alleged damages of $100,000. At the time of the car accident, both
parties were domiciled in the forum state. Following the accident, but before filing the complaint, the
plaintiff accepted a full-time job in another state and moved to that state with the intent of living there
permanently. After a bench trial, the judge ruled for the plaintiff and awarded $70,000 in damages. The
defendant appealed the decision, asserting for the first time that the trial court lacked subject-matter
jurisdiction.

Is the defendant likely to succeed in his appeal?

(A) No, because the defendant waived the issue by failing to raise it in the lower court.

(B) No, because the requirements for diversity jurisdiction were satisfied.

(C) Yes, because the plaintiff recovered less than $75,000 in damages.

(D) Yes, because the parties were not citizens of different states when the claim arose.

B
Is the defendant likely to succeed in his appeal?
Answer
No, because the requirements for diversity jurisdiction were satisfied.
Diversity jurisdiction: looking for complete diversity and over 75,000. Is the amount claimed in good
faith, and could a reasonable jury award that amount?
Jurisdiction is determined on the date the lawsuit is filed. Where were the parties domiciled on that date
it was filed? Initially lived in the same state, but before filing, the plaintiff moved, got a full time job,
intended to live there permanently, so they established a domicile. Doesn't matter that they recovered
less than 75,000.
Complete diversity, amount in controversy met when filed.
As a benefit to his employees, a small business owner in State A offered to match the funds contributed
to an IRA and would use his own financial planner when determining how to invest his employees'
funds. His financial planner lived and worked in neighboring State B. After the financial planner
fraudulently transferred many of the client funds to his own account, an employee filed suit in federal
district court against both the financial planner and the employer in the amount of $100,000. In his
complaint, the employee, a citizen of State A, included a short and plain statement asserting that the
federal district court had subject-matter jurisdiction over the matter based on diversity jurisdiction.

May the court properly exercise jurisdiction over the claims against the financial planner and the
employer?
(A) Yes, because the amount in controversy exceeds $75,000.

(B) Yes, because the financial planner resides in the neighboring state.

(C) No, because the employee included the employer as a defendant in the complaint.

(D) No, because diversity jurisdiction does not apply to this type of dispute.

C
May the Court properly exercise jurisdiction over the claims against the financial planner and
employer?
Answer
Not going to be SMJ, this is a state law claim, so look to see if there's diversity or not. And then,
75,000. The problem is that we have state A on both sides of the V, the employer is from state A, the
employee is from state A, financial planner is state B. The financial planner is diverse, but the employer
is not. Since A is on both sides of the V, there is no diversity jurisdiction.
While vacationing in State D, a plaintiff, a citizen of State A, was involved in an automobile accident
with a delivery truck. The delivery truck driver was a citizen of State B, and he was delivering
packages for a parcel shipping company that was incorporated in State C and whose principal place of
business was in State D. The plaintiff brought a common law negligence suit against the delivery truck
driver and the parcel shipping company in State D state court seeking to recover $85,000 for personal
injury and property damage.

If the delivery truck driver and the shipping company seek to remove the action to the federal district
court in State D, will they be successful?
(A) Yes, because the State D federal district court has diversity jurisdiction over the claim.

(B) Yes, because the right of removal belongs to the defendants.

(C) No, because a state law claim filed in a state court cannot be removed to a federal court.

(D) No, because the parcel shipping company is a citizen of State D.

D
If the delivery truck driver and the shipping company seek to remove the action to the federal district
court in State D, will they be successful?
Answer
No, because the parcel shipping company is a citizen of State D
One of the most basic removal rules, is the forum defendant rule. If a defendant is sued on a state law
claim, in their home state state court, you cannot remove to federal court. This also applies if any of the
defendants reside in the state where the lawsuit is filed, then none of the defendants can remove to
federal court if it's a state law claim.
The delivery truck driver is from state D, the problem is the shipping company. They're incorporated in
state C, principal place of business is in state D, so they have established domicile in state D. We have a
resident in state D, on a state law claim, so they cannot remove to federal court, because the claim was
initially filed in state court in state D.
A consumer who leased a car that was damaged in an accident challenged the lessor's calculation of the
early termination charge as a violation of the federal Consumer Leasing Act by filing an action in
federal district court. Both the consumer and the lessor were citizens of the state in which the federal
district court was located. The lessor filed a counterclaim based on state law for recovery of the
termination charge pursuant to the lease. The court ruled that it would exercise jurisdiction over the
lessor's counterclaim.

On what basis can the court justify subject matter jurisdiction over the lessor's counterclaim?
(A) Federal question jurisdiction

(B) Diversity jurisdiction

(C) Supplemental jurisdiction

(D) Removal jurisdiction

C
On what basis can the court justify subject matter jurisdiction over the lessor's counterclaim?
Answer
Supplemental jurisdiction
Federal question jurisdiction is guided by the well pleaded complaint rule, and here we're guided by
state law. Diversity jurisdiction doesn't apply, they're all domiciled in the same state.
We have an anchor claim, we have independent subject matter jurisdiction, it's factually related, so C is
our best answer.
A woman, who was a citizen of State A, was injured in an automobile accident on a highway in State A
when a truck collided with her car. The truck driver was a citizen of State Z, located across the country
from State A. Although the woman had no contacts with State Z, she filed suit in federal district court
in State Z under diversity jurisdiction, asserting damages resulting from the truck driver's negligence.
The truck driver timely filed a counterclaim against the woman, asserting that the woman's negligence
had caused the accident and claiming damages as a result. Deciding not to litigate the matter, the
woman withdrew her complaint. The truck driver, however, refused to withdraw his counterclaim and
is seeking to go to trial in the matter. The woman has filed a motion to dismiss the case, asserting that
the court lacks personal jurisdiction over her.

How should the court rule on the woman's motion to dismiss?

(A) Deny the motion, because the court has supplemental jurisdiction over the counterclaim.

(B) Deny the motion, because the woman consented to being sued in State Z.

(C) Grant the motion, because the woman does not have sufficient contacts with State Z to justify an
assertion of personal jurisdiction.

(D) Grant the motion, because the woman was only present in State Z for the purposes of her
complaint, which has been withdrawn.

B
How should the court rule on the woman's motion to dismiss?
Answer
Deny the motion, because the woman consented to being sued in State Z.
One of the ways you can be subject to personal jurisdiction is to consent, and one way to do so is by
filing suit there. File suit? You're submitting/ agreeing to the court for any counter claims that come,
especially compulsory counterclaims.
A hospital assigned to a corporation the hospital's claims against various patients for payment for
medical services rendered by the hospital to the patients. The corporation paid the hospital only a
fraction of the amount owed due to doubts about the collectability of the claims. The hospital, a citizen
of State O, relinquished all rights regarding these claims. The corporation, which was incorporated in
State F and had its headquarters in State L, had engaged in substantial business activity in State O. With
respect to one of the assigned claims, the corporation filed an action in State O federal court to collect
$95,000 owed by a patient for services rendered by the hospital. Seeking damages of $15,000, the
patient filed a counterclaim against the corporation for violation of state law in attempting to collect the
debt.

Can the patient, who was domiciled in State O, successfully challenge the court's subject-matter
jurisdiction over the corporation's claim?
(A) No, because patient's counterclaim does not meet the amount-in-controversy requirement.

(B) No, because the corporation and the patient are citizens of different states and the amount-in
controversy requirement is met.

(C) Yes, because the corporation had engaged in substantial business activity in State O.

(D) Yes, because the citizenship of the assignor of a claim is determinative for purposes of ascertaining
diversity jurisdiction.

B
Can the patient, who was domiciled in State O, successfully challenge the court's subject-matter
jurisdiction over the corporation's claim?
Answer
No, because the corporation and the patient are citizens of different states and the amount-in-
controversy requirement is met.
Assigned from a plaintiff to an assignee? Look at the domicile of who it was assigned to.
The corporation is domiciled where it is incorporated and its main place of business.
A plaintiff, who was a citizen of State X, sued a defendant, who was a citizen of State Y, in federal
district court under diversity jurisdiction for damages resulting from the defendant's negligent driving.
The car accident between the plaintiff and the defendant took place in State Y. State X and State Y each
have long-arm statutes, which differ in their requirements. The plaintiff filed the action in a federal
district court in State X.

Which long-arm statute should the court apply in determining personal jurisdiction over the defendant?
(A) State X's, because State X is the forum state.

(B) State X's, because the plaintiff is a citizen of that state.

(C) State Y's, because the defendant is a citizen of that state.

(D) State Y's, because State Y is where the tortious act occurred.

A
Which long-arm statute should the court apply in determining personal jurisdiction over the defendant?
Answer
State X's, because state x is the forum state
Federal courts apply the long arm statute of the state in which they sit
The owner of a professional football team in State A rarely left the state. On one occasion, she visited
State B to negotiate and sign a licensing contract with a sports jersey manufacturing company. This
visit was her sole contact with State B. The contract gave the sports jersey manufacturing company
exclusive rights for five years to use the team's copyrighted logo on reproduction sports jerseys in
exchange for an annual licensing fee. After one year under this contract, the owner signed an agreement
with a limited partnership in State A giving it the rights to use the team's copyrighted logo on jerseys.
The manufacturing company then filed suit against the owner in federal district court in State B under
diversity jurisdiction, asserting a breach of contract under state law.

Which of the following is the manufacturing company's best argument that the federal district court in
State B may exercise personal jurisdiction over the owner?
(A) The court has general jurisdiction because the copyrighted logo was used in the stream of
commerce.

(B) The court has general jurisdiction because the owner had minimum contacts with State B.

(C) The court has specific jurisdiction because the claim against the owner arose out of her contacts
with State B.

(D) The court has specific jurisdiction because the claim arose out of federal copyright law.

C
Which of the following is the manufacturing company's best argument that the federal district court in
State B may exercise personal jurisdiction over the owner?
Answer
The court has specific jurisdiction because the claim against the owner arose out of her contacts with
State B
Specific v general jurisdiction
Specific: arises from a minimum contact, fair and reasonable. The sports company contact is a
minimum contact, and but for going to state B to sign a contact, there would be no contact for her to
breach.
Specific jurisdiction, the claim is related to the fact that there was an agreement signed and made in
state B.
The plaintiff, a resident of State A, was visiting the home of the defendant, who resides in State B. As
the plaintiff was leaving the house, she fell through a rotted plank in the front steps and broke her
ankle. The plaintiff underwent several surgeries and extensive rehabilitation. She brought suit in federal
district court, alleging that the defendant negligently maintained her premises and asking for relief in
the amount of $150,000. The defendant filed a counterclaim alleging that the plaintiff owes her $5,000
as payment for web design work that the defendant completed for the plaintiff.

If the plaintiff filed a motion to dismiss the defendant's counterclaim for lack of jurisdiction, will the
plaintiff succeed?
(A) No, because the parties maintain complete diversity.

(B) No, because the federal district court may exercise supplemental jurisdiction over counterclaims.

(C) Yes, because the defendant's counterclaim does not meet the amount-in-controversy requirement
for diversity jurisdiction.

(D) Yes, because the federal district court may only exercise supplemental jurisdiction when the action
includes compulsory counterclaims.

C
If the plaintiff filed a motion to dismiss the defendant's counterclaim for lack of jurisdiction, will the
plaintiff succeed?
Answer
Yes, because the defendant's counterclaim does not meet the amount in controversy requirement for
diversity jurisdiction
It's a state law claim.
You could get diversity jurisdiction through federal question, but this is a breach of contract state law
tort
What about diversity jurisdiction? It's true that we have diversity, but the amount of controversy has to
exceed 75,000, and that isn't met here, so no diversity jurisdiction.
Supplemental jurisdiction? Not here, the counterclaim is not factually related to falling through the
rotten plank in the wood.
It's not D, because C is the better answer, and the issue with D, is that the way its framed is absolute, it
can only do supplementals with compulsory counterclaims, and that's too narrow. It can have impleader
claims, cross claims, counterclaims.
A corporation filed a complaint against a former executive in state court, alleging a breach of the duty
of loyalty imposed by state law. The former executive filed an answer that contained a counterclaim
based on federal law. The case was assigned to a judge who had a reputation for being anti-business.
Unhappy with the assignment, the plaintiff corporation, which is incorporated in the forum state, filed a
timely notice of removal with the federal district court for the district in which the state court sat. The
plaintiff argued that removal was proper due to the federal-question basis for the counterclaim.

Is the plaintiff's removal of the case to federal court proper?

(A) Yes, because the defendant's counterclaim could have been brought in federal court.

(B) Yes, because the plaintiff's notice of removal was timely filed with the correct court.

(C) No, because the plaintiff is a citizen of the state in which the action was filed.

(D) No, because a plaintiff may not remove a case to federal court.

D
A plaintiff, a citizen of State X, sued a defendant, a citizen of State Y, for negligence in federal district
court in State X based on diversity jurisdiction. The case involved a car accident that occurred in State
Y. The defendant timely filed a pre-answer motion to dismiss under Rule 12(b), asserting that the court
had lacked personal jurisdiction over her because she had no contacts with State X. The court set a
hearing on the motion and the defendant traveled to State X and appeared before the court to argue the
motion.

Which of the following statements is accurate regarding the defendant's actions?

(A) The defendant's motion under Rule 12(b) and voluntary appearance in court in State X
automatically subject her to the court's personal jurisdiction.

(B) The defendant's Rule 12(b) motion and voluntary appearance in court in State X are factors to be
considered in determining whether she is subject to the court's personal jurisdiction.

(C) Only the defendant's voluntary appearance in court and not her Rule 12(b) motion can be
considered as a factor in determining whether she is subject to the court's personal jurisdiction.

(D) Neither the defendant's Rule 12(b) motion nor her voluntary appearance in court subject her to the
court's personal jurisdiction.

D
Which of the following statements is accurate regarding the defendant's actions?
Answer
Neither the defendant's rule 12(b) motion nor her voluntary appearance in court subject her to the
court's personal jurisdiction
Filing a rule 12(b) motion is never agreeing to PJ, neither is attending a court hearing.

Removal is the procedure by which a case brought in ________________ court is shifted to

___________________ court.

(A) state; federal

(B) state; another state
(C) federal; state
(D) federal; another federal court
(A) state; federal
Regarding injunctions, which of the following is FALSE?

(A) A mandatory injunction prohibits a defendant from doing something.

(B) A preliminary injunction can be issued prior to a full hearing on the merits, but it requires notice to
the defendant and a hearing on whether it should be granted.

(C) A temporary restraining order is used to preserve the status quo until the court can make a decision
on a preliminary injunction.

(D) If a temporary restraining order is issued without notice, the other party can make a motion to
dissolve the order.
(A) A mandatory injunction prohibits a defendant from doing something.

Note: this is a PROHIBITORY injunction

Under the Erie Doctrine, a federal district court generally must apply which law in a diversity action?

(A) Federal procedural and federal substantive law

(B) State procedural and state substantive law
(C) Federal procedural and state substantive law
(D) State procedural and federal substantive law
(D) State procedural and federal substantive law
Under the Erie Doctrine, which of the following is NOT an example of state substantive law?

(A) State discovery deadlines

(B) State rules allocating burdens of proof on state claims
(C) State rules governing choice of law
(D) Statutes of limitations for state claims
(A) State discovery deadlines
When deciding a motion to dismiss for failure to state a claim, the court engages in a two-step inquiry:
(1) identify allegations that are ____________________, and (2) ask whether remaining allegations
make a ______________________ case for recovery.
conclusory; plausible
Regarding complaints, which of the following is FALSE?

(A) The plaintiff's recovery is generally limited to the claim for relief made in the complaint.
(B) A complaint must include a demand for judgment for the relief sought.
(C) A complaint must include a short and plain statement of the court's subject matter jurisdiction.
(D) The federal rules require only notice pleading in most cases.
(A) The plaintiff's recovery is generally limited to the claim for relief made in the complaint.
Regarding an answer, which of the following is TRUE?

(A) An answer generally must be filed within one week of service of the complaint.
(B) A failure to respond to an allegation in the complaint is treated as a denial.
(C) A counterclaim must be separately pleaded; it cannot be contained in the answer.
(D) Affirmative defenses must be pleaded in the answer
(D) Affirmative defenses must be pleaded in the answer
Which of the following is FALSE regarding an attorney's responsibility with respect to documents such
as pleadings filed with the court?

(A) An attorney must sign the documents.

(B) By signing, the attorney certifies that, among other things, the document is not being presented for
an improper purpose.
(C) An attorney may be sanctioned for a false certification.
(D) Most pleadings and motions need not be certified.
(D) Most pleadings and motions need not be certified.

Note: Most pleadings and motions need not be VERIFIED

Regarding oral depositions, which of the following is FALSE?

(A) The deposition is given under oath.

(B) The deposition is generally limited to one seven-hour day.
(C) Any person sought to be deposed must be subpoenaed in order to compel attendance.
(D) An entity selects the individual who will respond at the deposition on the entity's behalf.
(B) The deposition is generally limited to one seven-hour day.
Regarding the standards for appellate review, which of the following is TRUE?

(A) The standard for setting aside judicial decisions regarding the law is "abuse of discretion."

(B) In reviewing a jury verdict, the verdict must be affirmed by the appellate court unless it is
supported by substantial evidence.

(C) The standard for setting aside judicial findings of fact is "clearly erroneous."

(D) The appellate court must abide by the conclusions of the district court on legal issues
(C) The standard for setting aside judicial findings of fact is "clearly erroneous."
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).
Motion to dismiss for failure to state a claim - Rule 12(b)(6) motion
- A request that the court dismiss the suit because the nonmovant's complaint fails to assert a legally
cognizable claim OR fails to allege facts that sufficiently support the claim.
- The court's consideration of this motion is limited to the contents of the pleadings (including attached
exhibits) and matters of public record.

- The court also must:

(A) treat all well-pleaded facts in the complaint as true, AND
(B) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant.
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.
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.
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 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.
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.
When are two claims considered related for purposes of supplemental jurisdiction?
When the claims arise out of a common nucleus of operative fact
What are the four requirements for a class action?
(1) The class must be so numerous that joinder of all members is impracticable (numerosity);

(2) There must be questions of law or fact that are common to the class (commonality);

(3) The claims or defenses of the representatives must be typical of the class (typicality); and

(4) The representatives must fairly and adequately protect the interests of the class (adequacy).
What is the due process requirement for in personam jurisdiction?
Due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts
with the forum state such that the maintenance of the action does not offend traditional notions of fair
play and substantial justice.
Generally, where is venue proper?
(1) A judicial district in which any defendant resides, if all defendants reside in the same state in which
the district is located; or

(2) A judicial district in which a "substantial part of the events or omissions" on which the claim is
based occurred, or where a "substantial part of the property" that is the subject of the action is located.
Under the Erie Doctrine, what law governs in a diversity action?
- Substantive law of the state in which the district court is located, IF there is no federal law on point.

- Federal procedural law, EVEN IF a state rule or statute is in conflict.

A plaintiff seeking a preliminary injunction must establish that:
(1) He is likely to succeed on the merits;

(2) He is likely to suffer irreparable harm in the absence of relief;

(3) The balance of equities is in his favor; AND

(4) The injunction is in the best interest of the public.

Required elements for a complaint
Under Rule 8(a), a complaint must include:

(1) A short and plain statement of the grounds that establish the court's subject matter jurisdiction;

(2) A short and plain statement of the claim establishing entitlement to relief; AND

(3) A demand for judgment for the relief sought by the pleader.
What is federal question jurisdiction?
Under 28 U.S.C. 1331, the district courts have original jurisdiction over all actions arising under the
Constitution, laws, or treaties of the United States.
Under Rule 15(a), a party may amend a pleading:
- Once as of right within 21 days if no responsive pleading is required; OR if a responsive pleading is
required, within 21 days of service of the responsive pleading or within 21 days of being served with a
motion under Rule 12(b), whichever is earlier.

- Additionally, the court should freely give leave to amend a pleading when justice so requires.
When may a plaintiff join as a permissive joinder?
Pursuant to Rule 20(a)(1), a person may join in one action as plaintiff if:

(1) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of
the same transaction, occurrence, or series of transactions or occurrences; AND

(2) Any question of law or fact common to all plaintiffs will arise in the action.

Note: The same circumstances apply to permissive joinder of defendants under Rule 20.
Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of
federal subject matter jurisdiction?
If multiple plaintiffs join together under Rule 20, then supplemental jurisdiction can exist for a claim
that does not meet the statutory jurisdictional amount, provided the parties still meet the requirements
of complete diversity.
When must an objection to improper venue be raised?
An objection to improper venue must be raised in a pre-answer motion to dismiss under Rule 12(b)(3),
OR in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed.
5 bases for in personam jurisdiction?
(1) Voluntary Presence
(2) Domicile
(3) Consent
(4) Long-arm statutes
(5) Attachment
What is a compulsory counterclaim?
A pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has
against an opposing party IF:

(1) The claim arises out of the same transaction or occurrence that is the subject matter of the opposing
party's claim; AND

(2) The claim does NOT require adding another party over whom the court cannot acquire jurisdiction.

Note: A party who fails to assert a compulsory counterclaim waives the right to sue on the claim AND
is generally precluded from ever suing on the claim in federal court.
3 types of personal jurisdiction
(1) In personam jurisdiction
(2) In rem jurisdiction
(3) Quasi-in-rem jurisdiction
3 types of class actions
(1) Risk of Prejudice - The class is maintainable if the prosecution of separate actions would create the
risk that the class opponent would become subject to incompatible standards of conduct resulting from
inconsistent adjudications, or if prosecution of the claims through separate actions would impair the
interests of the class members.
(2) Final Equitable Relief - A class seeking final injunctive or declaratory relief may be certified if the
class shares a general claim against the opposing party.

(3) Common Legal or Factual Questions - A class can be certified if questions of law or fact that are
common to the class members predominate over any questions affecting only individual members, and
a class action is the superior method for bringing about a fair and efficient adjudication of the
controversy.
What are the three types of mandatory disclosures?
Rule 26(a) requires the parties to make:

(1) Initial disclosures;

(2) Disclosures of expert testimony 90 days before trial
(3) Pretrial disclosures 30 days before trial.
In assessing whether a case can be filed in federal court, when is diversity determined?
- Diversity is determined at the time the case is filed.

- There is no requirement that diversity exist at the time the cause of action arose.

- A change in citizenship or amount in controversy after the filing of the case will not affect diversity
jurisdiction that was in existence at the time of the filing.

- A change in the parties as a result of substitution or intervention will not affect diversity jurisdiction.
How does a party make a demand for a trial by jury?
- Any party may make a written demand for a trial by jury.

- The demand, which may be made separately OR in a pleading, must be served within 14 days after
service of the last pleading directed to the issue that is sought to be tried by a jury, and filed with the
court within a reasonable time after service.
How many interrogatories may a party serve on another party under Rule 33(a)
No more than 25 written interrogatories on any other party.
How long may a temporary restraining order remain in effect?
No longer than 14 days UNLESS good cause exists OR the adversary consents.
How much time does a party have to respond to interrogatories?
The responding party must serve its answers and any objections within 30 days after being served with
the interrogatories.

Note: The court may order or the parties may stipulate to a shorter or longer time.
3 factors a court consider when deciding to set aside a default judgment
(1) Whether the defendant's failure to act was willful;

(2) Whether setting the default aside would prejudice the plaintiff; AND

(3) Whether the defendant has presented a meritorious claim.

How long does a defendant have to respond to a complaint under Rule 12?
Within 21 days of service of process, either by answer or pre-answer motion
How many peremptory challenges and challenges for cause does a party have?
- Each party in a civil case gets THREE peremptory challenges.

- Each party is entitled to an unlimited number of challenges for cause.

Rule re: removal when there are multiple defendants?
- In general, all defendants who have been properly joined and served are required to join in or consent
to the removal.

- IF the defendants are served at different times and a later-served defendant files a notice of removal,
THEN any earlier-served defendant may join in the removal even though that defendant did not
previously initiate or consent to removal.

Note: In cases of removal based on federal question jurisdiction, only those defendants against whom
the federal claim is asserted must join in or consent to the removal.
What seven defenses may be raised in a motion filed under Rule 12(b)?
(1) Lack of subject matter jurisdiction;
(2) Lack of personal jurisdiction;
(3) Improper venue;
(4) Insufficient process;
(5) Insufficient service of process;
(6) Failure to state a claim upon which relief can be granted; and
(7) Failure to join a necessary or indispensable party under Rule 19.
Which defenses are waived unless raised in the pre-answer motion or answer?
Under Rule 12(h)(1), the follwoing defenses must be raised in a pre-answer motion or, if no pre-answer
motion is made, in the answer, or the defenses will be waived:

(1) lack of personal jurisdiction,

(2) improper venue,
(3) insufficient process, AND
(4) insufficient service of process
The "100-mile bulge rule" establishes personal jurisdiction over a party who is: (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.
(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.
True or False:

When the defendant is a non-resident of the US, venue is proper in ANY judicial district
True
A jeweler who is a citizen and resident of a foreign country brought some jewels into the United States
to sell at a convention. A buyer purchased the jewels from the jeweler, whom the buyer had not
previously met but knew by reputation to be an honest businessperson. Subsequently, the buyer
discovered that the jeweler had misrepresented the quality of the jewels. The buyer has filed a diversity
action in the federal court for the district in which he resides against the jeweler based on a state-law
claim of misrepresentation. The convention had been held in another state. The jeweler has timely filed
a motion to dismiss this action based on lack of subject-matter and personal jurisdiction, as well as
improper venue. The court properly determined that it has subject-matter and personal jurisdiction.

Should the court grant the jeweler's motion as it relates to improper venue?

(A) No, because a nonresident of the United States may be sued in any judicial district.
(B) No, because the action is based on diversity jurisdiction, not federal-question jurisdiction.
(C) Yes, because the action is based on a state-law claim.
(D) Yes, because the cause of action arose in another state.
(A) No, because a nonresident of the United States may be sued in any judicial district.
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.

Note: If the poll reveals that the verdict is not unanimous, the court can either order a new trial OR
direct the jury to deliberate further
A class action was properly brought in federal district court based on diversity jurisdiction. The
defendant timely filed a jury trial demand. Because the trial was expected to be lengthy, the defendant
requested that the judge impanel a jury of 11 individuals. The plaintiff objected to this request. By
statute, the state in which the court is located limits the size of a civil jury to six members and two
alternates.

Should the court grant the defendant's request?

(A) No, because the court's jurisdiction is based on diversity.

(B) No, because the number of jurors would exceed the maximum number permitted under state law.
(C) Yes, because the number of jurors was within the requisite range.
(D) Yes, because the request was made by the party who demanded a jury trial.
(C) Yes, because the number of jurors was within the requisite range.
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 (i.e., harm that CANNOT be
compensated by monetary damages),

(3) the balance of equities is in the movant's favor, AND

(4) the injunction is in the best interests of the public.

Under Rule 38, a party may demand a jury trial on any triable issue (i.e., any legal claim where the
amount in controversy exceeds $20) by:
(1) Serving the other parties with a written jury trial demand no later than 14 calendar days after the
last pleading directed to that issue is served, AND

(2) Filing the jury trial demand with the court within a reasonable time after service of the demand.
Family members of a deceased individual properly filed an action for money damages in federal court
against a funeral home for negligent infliction of emotional distress based on the alleged mishandling
of the remains of the deceased. The funeral home timely and properly served an answer to the
complaint. Thirty days later, including eight weekend days, the family members served a demand for a
jury trial on the funeral home. The demand was served on a holiday. On the following day, a
nonholiday weekday, the family members filed the jury trial demand with the court.

Was the family members' demand for a jury trial timely?

(A) No, because the demand was not served on the funeral home within 14 days of service of the
answer.
(B) No, because the demand was not filed with the court within 21 days of service of the answer.
(C) Yes, because the demand was served on a holiday.
(D) Yes, because weekend days are not counted in determining whether the demand was timely
(A) No, because the demand was not served on the funeral home within 14 days of service of the
answer.
A subpoena of a non-party for oral deposition may be served and the deposition conducted without the
court's leave or the parties' stipulation UNLESS:
(1) The deposition exceeds the 10-deposition limit (which includes both oral and written depositions)

(2) The deposition is sought before the parties' initial planning conference, OR

(3) The deponent was already deposed in the action.

Note: Leave of court is always required when deponent is in prison.

A plaintiff has brought a breach-of-contract action against a rancher in federal court under diversity
jurisdiction. Before the initial planning conference occurred, the plaintiff subpoenaed the rancher's
neighbor, a farmer, for an oral deposition. The rancher has moved to quash the subpoena.

How should the court rule on this motion?

(A) For the plaintiff, because the farmer, as a nonparty, was properly served with a subpoena to compel
attendance.
(B) For the plaintiff, because the plaintiff has not exceeded her 10-deposition limit.
(C) For the rancher, because the farmer is not a party to the case.
(D) For the rancher, because the plaintiff sought to depose the farmer before the initial planning
conference.
(D) For the rancher, because the plaintiff sought to depose the farmer before the initial planning
conference.
The Class Action Fairness Act gives a federal court an alternative basis for subject-matter jurisdiction
over a class action when:
(1) the class contains 100 members,
(2) at least one class member is diverse from at least one defendant (i.e., minimally diverse), AND
(3) the amount in controversy of the aggregated claims exceeds $5 million.
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.

Note: Before an appeal is docketed in the appellate court, a district court can correct a mistake in a
judgment, order, or other part of the record on its own initiative or pursuant to a party's motion. But
after an appeal has been docketed, the district court can correct the mistake only with the appellate
court's leave.
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
True or False:

Damages-related allegations CANNOT be admitted by the defendant's failure to deny them in an

answer.
True
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.
Rule statements re: scope of discovery
- Discovery is generally permitted with regard to any non-privileged matter relevant to any party's
claim or defense in the action.

- Information within the scope of discovery need not be admissible in evidence to be discoverable.

- The test is whether the information sought is relevant to any party's claim or defense.
Rule statements re: discovery of work product
- In general, a party may NOT discover documents and tangible things that are prepared in anticipation
of litigation or for trial by or for another party or its representative.

- BUT such materials will be subject to discovery IF the party shows that (1) it has substantial need for
the materials to prepare its case and (2) cannot, without undue hardship, obtain their substantial
equivalent by other means.
When are sanctions authorized for spoliation
Sanctions are authorized for spoliation of evidence ONLY IF the information cannot be restored or
replaced by additional discovery.
Under FRCP 15, an answer can be amended once as a matter of course within ________ days
21 days
A plaintiff, a citizen of State X, sued a defendant, a citizen of State Y, for negligence in federal district
court in State X under diversity jurisdiction, in connection with an automobile accident that occurred in
State Y. The defendant has had no contacts with State X. The plaintiff personally served the defendant
with a summons and complaint at his home in State Y. The defendant's first response to the complaint
was an answer that specifically denied the plaintiff's claims but omitted the defense of lack of personal
jurisdiction. Fifteen days after serving the answer on the plaintiff, the defendant amended the answer to
include the defense of lack of personal jurisdiction without asking leave of the court.

Which of the following statements is most accurate regarding the defendant's actions?
(A) The defense of lack of personal jurisdiction can never be waived and may always be asserted by a
defendant.

(B) The defense of lack of personal jurisdiction has been waived unless the court subsequently grants
the defendant leave to amend his answer.

(C) The defense of lack of personal jurisdiction was not waived and may be asserted by the defendant.

(D) The defense of lack of personal jurisdiction was permanently waived when the defendant's answer
failed to include it.
(C) The defense of lack of personal jurisdiction was not waived and may be asserted by the defendant.
True or False:

A judgment as a matter of law cannot be rendered with regard to a defense.

False - A motion for judgment as a matter of law is a request that the court issue a judgment on any
claim or defense in the movant's favor because the evidence is legally insufficient for a reasonable jury
to find in the nonmovant's favor
A patient filed a medical malpractice action against a physician in federal court based on diversity
jurisdiction. At the close of the patient's case to the jury, the physician's attorney moved for a judgment
as a matter of law that the patient had failed to establish the physician's negligence. The court denied
this motion. The patient's attorney did not move for a judgment as a matter of law at that time. At the
close of the physician's case to the jury, the patient's attorney moved for judgment as a matter of law
that the physician's affirmative defense based on the expiration of the statute of limitations had not been
established. The court determined that no reasonable jury could find that the statute of limitations had
expired.

Can the court grant the motion of the patient's attorney?

(A) No, because a judgment as a matter of law cannot be rendered with regard to a defense.
(B) No, because the patient's attorney did not move for a judgment as a matter of law at the close of the
patient's case.
(C) es, because a motion for a judgment as a matter of law can be made at any time before the jury
renders a verdict.
(D) Yes, because the motion made by the patient's attorney was timely and proper.
(D) Yes, because the motion made by the patient's attorney was timely and proper.
A plaintiff filed a breach-of-contract action based on diversity jurisdiction in federal district court. In
her answer, the defendant alleged that she was not liable to the plaintiff due to a novation. The plaintiff
did not reply to this allegation, and the court did not order the plaintiff to do so.

How should the court treat the defendant's novation allegation?

(A) As admitted by the plaintiff, because an allegation, other than one that relates to the amount of
damages, is deemed admitted if not denied.

(B) As admitted by the plaintiff, because the plaintiff did not respond to this allegation.

(C) As denied by the plaintiff, because a party is not required to respond to an allegation contained in
an opposing party's pleading.
(D) As denied by the plaintiff, because the plaintiff was not required to respond to the defendant's
pleading.
(D) As denied by the plaintiff, because the plaintiff was not required to respond to the defendant's
pleading.
What is a collateral order?
A district court order that (1) conclusively resolves an important issue that is (2) separate from the
merits of the claim and (3) effectively unreviewable on appeal from a final judgment.
A famous politician brought a federal diversity action against a newspaper for libel. The newspaper had
printed an article describing the politician as "a crook who can be easily bribed." At trial, the
politician's lawyer delivered her opening statement, followed by the opening statement of the
newspaper's lawyer. The judge then adjourned the trial for the day. The newspaper's lawyer
immediately filed a motion for judgment as a matter of law. The motion specified the judgment sought
and detailed all of the facts behind the newspaper's statement in the article, as well as the law
supporting judgment in its favor.

Was the newspaper's motion proper?

(A) No, because the newspaper had not presented its case to the jury.
(B) No, because the politician had not been fully heard on any issue.
(C) Yes, because the motion was made prior to the presentation of all evidence at trial.
(D) Yes, because the motion was supported by the specific facts and law entitling the newspaper to the
judgment.
(B) No, because the politician had not been fully heard on any issue.
A plaintiff may assert a third-party claim against a third-party defendant if:
(1) that claim arises out of the same transaction or occurrence as the plaintiff's claim against the
defendant in the original complaint, and

(2) the third-party claim satisfies original subject-matter jurisdiction.

A company properly filed a diversity action in federal district court against an accountant for
malpractice in preparing the company's financial statements. The accountant impleaded his malpractice
insurer, asserting a claim for contribution against the insurer in the event that the accountant was liable
to the company. The company then timely filed a third-party claim against the insurer for $90,000 in
damages to the company vehicles caused by a falling tree.

The insurer and the accountant are citizens of the same state, while the company is a citizen of a
different state.

The insurer has moved to dismiss this claim due to improper joinder.
Should the court grant the insurer's motion?

(A) No, because a plaintiff may file a third-party claim against a third-party defendant.

(B) No, because the court has subject-matter jurisdiction over the company's claim against the insurer.

(C) Yes, because the company's claim against the insurer does not arise out of the accountant's
preparation of the company's financial statements.
(D) Yes, because the court lacks jurisdiction over the claim asserted by the accountant against the
insurer
(C) Yes, because the company's claim against the insurer does not arise out of the accountant's
preparation of the company's financial statements.
Under FRCP 4, a plaintiff can properly serve a defendant who is an individual located in the United
States by:
(1) following the rules of the state where the court sits OR where service is made

(2) having process delivered to the defendant personally (or to an agent authorized to receive process),
OR

(3) having process delivered to the defendant's dwelling and left with a resident of suitable age and
discretion (i.e., old enough to possess the limited capacity necessary to comprehend the situation)
A federal district court denied certification of an action as a class action. In doing so, the court made a
mistake of law. Thirteen days after the entry of the district court's order, the plaintiff filed a petition
with the clerk of the applicable circuit court for permission to appeal the denial of certification.

Must the appellate court hear this appeal?

(A) No, because entertaining this appeal is at the discretion of the appellate court.
(B) No, because the petition was not timely filed.
(C) Yes, because the district court denied rather than granted certification of the class.
(D) Yes, because the district court made an error of law.
(A) No, because entertaining this appeal is at the discretion of the appellate court.
An appellate court has discretion to permit an appeal from an order granting or denying class action
certification if the petition for such an appeal is filed with the clerk of the appellate court within ______
days after the order is entered.
14
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.
A patient sued a doctor in federal district court under diversity jurisdiction for injuries resulting from
the doctor's alleged negligence in prescribing the wrong drug for the patient. Prior to trial, the judge
granted the patient's motion for summary judgment, finding that the doctor was negligent. Unable to
satisfy his judgment due to the doctor's bankruptcy, the patient brought a second suit for negligence in
state court, this time against the clinic where the doctor worked as an independent contractor.

Does the judge's finding of the doctor's negligence in the first suit preclude the clinic from litigating
this issue in the second suit?

(A) No, because the clinic was not a party to the first suit.
(B) No, because the judgment in the first action was a summary judgment.
(C) Yes, because the judge's negligence finding in the first suit was essential to the judgment.
(D) Yes, because the patient is seeking the same relief based on negligence.
(A) No, because the clinic was not a party to the first suit.
In a civil action tried in federal district court, the judge determined that, due to the anticipated length of
the trial, nine jurors were needed to ensure that six jurors remained when the case was sent to the jury
for deliberation. The judge's determination was made in good faith and based on her experience as a
judge dealing with juror requests for dismissal from a case. Consequently, nine individuals were
selected as members of the jury. However, after each attorney had made his closing argument, all nine
jurors remained. Without consulting either party, the judge, acting without discriminatory intent with
regard to race or gender, excused the three jurors who had been selected last to reduce the jury to six
jurors.

Was this action proper?

(A) No, because the judge did not excuse the three jurors for good cause.
(B) No, because the judge failed to consult either party.
(C) Yes, because a verdict may be returned by a jury with as few as six members.
(D) Yes, because the judge acted without discriminatory intent with regard to the race or gender of the
excused jurors.
(A) No, because the judge did not excuse the three jurors for good cause.
A plaintiff filed a complaint in federal court alleging that a cell phone application sold by the defendant
infringed upon a patent held by the plaintiff. The complaint was signed by an associate at the large law
firm that represented the plaintiff. The defendant filed a motion to dismiss, arguing that the cell phone
application at issue did not actually perform as described in the complaint and thus did not violate the
plaintiff's patent. The court held a hearing on the motion to dismiss.

At the hearing, the defendant presented evidence that the application performed only functions not
covered by the plaintiff's patent. The defendant also showed that the plaintiff's attorney had never
actually used the application but had drafted the complaint based solely on his client's description of
the application. The court granted the motion to dismiss. The court also issued an order requiring the
plaintiff's attorney and his law firm to pay the defendant's attorney's fees, finding that the plaintiff's
attorney had not conducted a reasonable inquiry into the factual contentions in the complaint.

Which of the following is the best argument that the court erred in its order requiring payment of
attorney's fees?

(A) A court may not impose a monetary sanction under Rule 11 on its own initiative without issuing a
show-cause order.
(B) A court may not impose sanctions against a law firm unless the pleading at issue is signed by a
partner.
(C) An attorney may rely upon factual contentions put forth by the client in a pleading.
(D) Attorney's fees are not a permissible sanction under Rule 11.
(A) A court may not impose a monetary sanction under Rule 11 on its own initiative without issuing a
show-cause order.
A court can impose monetary sanctions for violations of Rule 11(b). Sanction proceedings can be
initiated by:
(1) a party's motion, OR

(2) on the court's own initiative, SO LONG AS the judge issues an order to show cause.
An amended complaint will "relate back" to the date of the original complaint if:
(1) the same occurrence is at issue,

(2) the new party received notice of the suit within 90 days after the original complaint was filed, and

(3) the new party knew OR should have known that it would have been sued but for a mistake about its
identity.
A group of residents sought certification as a class in federal district court for a class action against a
nursing home for damages resulting from substandard nursing care. The district court granted
certification of the class, and the defendant nursing home timely and properly filed a petition for
permission to appeal the certification with the appropriate court of appeals.

If the court of appeals permits the nursing home's appeal, what is the effect on the district court
proceedings?

(A) The proceedings in the district court are automatically stayed pending the appeal.
(B) The proceedings in the district court are stayed pending the appeal if the district court or the court
of appeals so orders.
(C) The proceedings in the district court can be stayed pending the appeal only by order of the district
court.
(D) The proceedings in the district court cannot be stayed pending the appeal.
(B) The proceedings in the district court are stayed pending the appeal if the district court or the court
of appeals so orders.
A professional musician entered into a written contract with an instrument maker to craft a banjo. The
contract was negotiated and executed in the state in which the musician resides. The banjo was made at
a workshop located in another state across the country. The maker resides near his workshop in a third
state. Each of the three states has a single federal judicial district. The musician traveled to the maker's
workshop, where he picked up the banjo and paid for it. Subsequently, the musician discovered a defect
in the banjo. The musician filed suit for breach of contract in the federal district court in the state where
he resides.

Is venue proper there?

(A) No, because events and omissions giving rise to the breach-of-contract claim predominantly
occurred in the state in which the workshop is located.

(B) No, because substantial events and omissions giving rise to the breach-of-contract claim occurred
in another state.
(C) Yes, because a substantial part of the events or omissions on which the breach-of-contract claim is
based occurred in the state.

(D) Yes, because the musician resides in the state.

(C) Yes, because a substantial part of the events or omissions on which the breach-of-contract claim is
based occurred in the state.
True or False:

Additur is never allowed in federal court

True

Note: A party may move for a new trial on the basis that the fact finder awarded an inadequate amount
of damages. If a federal court rules that the amount was inadequate, it may order a new trial but may
not impose an increase in the amount of damages (i.e., additur).
What is the "two dismissal" rule?
Under the two-dismissal rule, a voluntary dismissal is with prejudice when the plaintiff:

(1) voluntarily dismissed an action in federal or state court without a court order, AND

(2) filed a notice of voluntary dismissal in a second action on the same claim in federal court.
What are the four abstention doctrines?
(1) Pullman - Resolution of unsettled state law in state court would moot federal constitutional issue

(2) Bufurd - Injunction or declaratory judgment would interfere with complex state regulatory scheme
that serves important state policy & provides timely & adequate judicial review

(3) Colorado River - Pending state proceeding involving substantially same parties & issues presents
exceptional circumstances that justify conserving judicial resources

(4) Younger - Injunction or declaratory judgment would interfere with pending state proceeding that
involves important state interest & provides adequate opportunity to litigate federal claims
When the U.S. government is sued under the Federal Tort Claims Act for the tortious conduct of a
federal employee, venue is proper where:
(1) the plaintiff resides, OR
(2) where the act or omission complained of occurred.
Under Rule 49(b), what must a judge do if a jury returns an inconsistent verdict?
- Order new trial
- Direct jury to further consider its answers & verdict, OR
- Disregard verdict & enter judgment consistent with answers
When MUST a clerk enter a party's default into record?
- Defendant failed to timely serve an answer
- Plaintiff's claim is for a sum certain
- Plaintiff's affidavit established amount due
- Defendant failed to appear, AND
- Defendant is not a minor or incompetent
A party cannot file a motion for sanctions until _________ after serving that motion on the alleged
violator. This safe-harbor rule gives a violator time to correct the violation.
21 days
A farmer filed an action in federal district court based on diversity jurisdiction seeking damages
attributable to a malfunctioning irrigation system of which four different defendants had participated in
the design, manufacture, and installation. The farmer advanced three alternative theories of liability
against the defendants: breach of contract, breach of warranty, and negligence.

Prior to trial, the court required the parties to submit requests for jury instructions. Each party
submitted such instructions. Prior to the close of evidence, the court held a charge conference to discuss
the form of the verdict and related jury instructions. Due to the number of defendants and variety of
theories of liability against each, the court determined that a special-verdict form would be used.

After the close of evidence, the defendants requested additional jury instructions because they were
concerned that the special-verdict form failed to clearly indicate that, if the jury found for the farmer,
the farmer was limited to a single recovery of his damages.

Should the court permit the defendants' request for these instructions?

(A) No, because a court may, but is not required to, permit a party to request specific jury instructions.
(B) No, because the court had provided the defendants with the opportunity to submit jury-instruction
requests.
(C) Yes, because the conference was held before the close of evidence.
(D) Yes, because the defendants could not reasonably have anticipated the need for such instructions
prior to seeing the special-verdict form.
(D) Yes, because the defendants could not reasonably have anticipated the need for such instructions
prior to seeing the special-verdict form.
Forum non conveniens
The common-law doctrine of forum non conveniens allows a federal court to dismiss or stay a case—
even when venue is proper in that court—if a state or foreign judicial system is better suited to hear the
dispute

Note: If you see a case being transferred for convenience of the parties, this is NOT under this doctrine.
Police may re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel if
there has been a _______ or more break in custody
14 day
A woman received a facial rejuvenation treatment. During the treatment, the woman suffered severe
damage to her skin due to her dermatologist's gross negligence. The woman filed a federal diversity
suit in State A against the dermatologist. The woman lives in State B, but she had been visiting the
treatment facility that the dermatologist operates in State A. The contract that the woman signed with
the dermatologist permits the recovery of attorney's fees. The woman is seeking damages of $25,000 to
recover for the cost of the treatment, $40,000 for pain and suffering, $10,000 for attorney's fees, and
$100,000 in punitive damages.

Does the woman's claim satisfy the amount-in-controversy requirement?

(A) No, because the total amount in controversy is $25,000.

(B) No, because the total amount in controversy is $65,000.
(C) Yes, because the total amount in controversy is $75,000.
(D) Yes, because the total amount in controversy is $175,000
(D) Yes, because the total amount in controversy is $175,000
Note: interests and costs NOT included BUT attorney's fees and punitive damages are
The plaintiff, the maker of an electronic device, filed a declaratory judgment action in federal district
court against the defendant, the maker of a similar electronic device. The plaintiff sought a judgment
that his device did not infringe on the defendant's patent. The court's subject matter jurisdiction was
based on a federal question.The plaintiff was a citizen of the state in which the federal district court was
located. The defendant, who was a citizen of a neighboring state, lived less than 100 miles from the
forum court. Despite the defendant's proximity to the forum court, the defendant was not subject to
service of process in her home state for this action under the laws of the forum state. A process server
employed by the plaintiff personally served the complaint and summons on the defendant in her home
state. Federal patent law does not contain special service of process provisions.

Does this service of process confer personal jurisdiction over the defendant on the federal district
court?

(A) Yes, because the court's subject matter jurisdiction is based on a federal question.
(B) Yes, because the "bulge provision" of Rule 4 of the Federal Rules of Civil Procedure applies.
(C) No, because this is a declaratory judgment action.
(D) No, because the defendant was not subject to service of process under the laws of the state in which
the court is located.
(D) No, because the defendant was not subject to service of process under the laws of the state in which
the court is located.
The "bulge" provision of the federal rule, which provides for service of process on a party within 100
miles of the forum court even if state law would not otherwise permit such service, applies only to:
- A third-party defendant joined under Rule 14, OR
- A required party joined under Rule 19
A plaintiff filed suit against a defendant in federal district court. The court had diversity jurisdiction
over the action, which was based on state law, and personal jurisdiction over the parties. On February
14, the defendant, alleging that the plaintiff had failed to prosecute the matter, moved to dismiss the
entire complaint and the trial judge granted the motion. The judgment was entered on February 25. The
plaintiff filed a notice of appeal with the district clerk on April 13.

Which of the following is most accurate regarding the plaintiff's appeal?

(A) The appeal is precluded by the final judgment rule.

(B) The appeal may be permitted according to the discretion of the court of appeals.
(C) The appeal is precluded because the claim was based on state law.
(D) The appeal was not timely filed.
(D) The appeal was not timely filed.

Note: must be filed within 30 days

A property owner unsuccessfully pursued a declaratory judgment action against a neighbor for
recognition of an express easement across the neighbor's property. The court, in its valid, final
judgment, held that the easement had been lost since the neighbor had constructed and then maintained
a fence cutting off the property owner's access to the easement for the statutory period for prescription
of the easement. The following year, the property owner sold her property. Shortly thereafter, the
neighbor died, and ownership of her property passed to her son. One month later, the buyer initiated a
declaratory action against the neighbor's son for recognition of the same alleged express easement.

Is claim preclusion a viable defense that the son can raise to this action?
(A) No, because the buyer was not a party to the prior lawsuit.
(B) No, because the son was not a party to the prior lawsuit.
(C) Yes, because mutuality of parties is not required.
(D) Yes, because the prior judgment was a valid, final judgment on the merits.
(D) Yes, because the prior judgment was a valid, final judgment on the merits.

Note: he buyer and son are successors in interest and thus treated as parties to the prior lawsuit.
An international shipping company was an industry leader in shipping textiles across international
waters. During a long journey from a foreign country to the United States, a shipment of textiles caught
fire and was destroyed. As a result, a small amount of oil from the cargo ship leaked into the ocean. The
media learned of the small oil leak and covered the story extensively. The media particularly focused
on the president of the shipping company and stated that he had a major disregard for the environment
and cared only about profits. Consequently, the shipping company's reputation suffered, and its profits
declined significantly. The president of the shipping company filed suit against some of the larger
media outlets in federal court for defamation.

The federal court should

(A) presume that jurisdiction is valid until the media outlets show otherwise.
(B) presume an absence of jurisdiction until the president demonstrates otherwise.
(C) place the burden of establishing or refuting jurisdiction upon both parties.
(D) address the issue of jurisdiction only if there is a question as to its validity.
(B) presume an absence of jurisdiction until the president demonstrates otherwise.