Civ Pro Final_spring 2020 {coronavirus}

35 Questions | Total Attempts: 287

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Civ Pro Final_spring 2020 {coronavirus}

Personal Jxd, Subject Matter Jxd, Joinder, Venue, Erie


Questions and Answers
  • 1. 
    A chef from State A sued a butcher from State B in State A federal court seeking $100,000 in compensation. The compensation was for tortious injuries caused in a car accident by the butcher's allegedly negligent driving while he was in State A. Apart from the single day of the car accident, the butcher has not spent any time in State A. The butcher does not wish to litigate in State A because he would have to close his butcher shop in order to travel to State A, thus losing all profits during that time. What course of action may the butcher's lawyer take?
    • A. 

      File a motion to dismiss for lack of subject-matter jurisdiction because the butcher does not have minimum contacts with State A.

    • B. 

      File a motion to transfer the case to State B federal court in order to cure the defect in personal jurisdiction.

    • C. 

      File a motion to transfer venue due to the burden that would be imposed on the butcher if he were required to litigate in State A.

    • D. 

      File a notice of removal in the federal district court of State B, where the butcher resides

  • 2. 
    An ecologist, a citizen of State A, brings suit against a cab driver, a citizen of State B, in the federal district court in State C. The lawsuit seeks $77,000 as compensation for tortious injuries caused by the cab driver's allegedly negligent driving while the ecologist and cab driver were in State D. The cab driver was served with process while on vacation in State C in accordance with State C law. What would be a valid argument for the cab driver's attorney to make?
    • A. 

      The court should dismiss the lawsuit for lack of subject-matter jurisdiction

    • B. 

      The court should dismiss the lawsuit because State C is an improper venue.

    • C. 

      The court should dismiss the lawsuit for lack of personal jurisdiction.

    • D. 

      The court should transfer the lawsuit for the convenience of parties and witnesses to a state court in State D

  • 3. 
    A bakery incorporated and headquartered in State A had a dispute with a mill incorporated and headquartered in State B over the quality of the flour the mill had delivered to the bakery. The bakery sued the mill in a federal court in State A for breach of contract, seeking $100,000 in damages. The contract between the bakery and the mill contained a clause designating State B courts as the sole venue for litigating disputes arising under the contract. Under precedent of the highest court in State A, forum-selection clauses are unenforceable as against public policy; under U.S. Supreme Court precedent, such clauses are enforceable. The mill has moved to transfer the case to a federal court in State B, citing the forum-selection clause in the parties' contract and asserting the facts that the flour was produced in State B and that the majority of likely witnesses are in State B. Is the court likely to grant the mill's motion?
    • A. 

      Yes, because federal law governs transfers of venue, and it would be more convenient for the witnesses and parties to litigate the claim in State B.

    • B. 

      Yes, because federal common law makes the forum-selection clause controlling

    • C. 

      No, because the mill should have instead filed a motion to dismiss for improper venue.

    • D. 

      No, because State A law treats forum-selection clauses as unenforceable

  • 4. 
    An employee, a citizen of State A, sues the State B corporation for which he works in federal district court in State B. The employee works in the corporation's factory located in State B. His one-count complaint seeks damages of $125,000 for the corporation's alleged violation of the Fair Labor Standards Act, a federal law that requires that higher wages be paid for overtime work. The corporation files an answer with a single counterclaim, alleging that the employee took $2,500 worth of the corporation's tools in violation of State A's wrongful conversion statute. The employee then files a motion to dismiss the corporation's counterclaim. Will Plaintiff's motion to dismiss be granted?
    • A. 

      Yes, the counterclaim runs afoul of pleading requirements because it does not arise out of the transaction or occurrence that is the subjectmatter of the original action

    • B. 

      No, because the Federal Rules of Civil Procedure allow permissive counterclaims.

    • C. 

      Yes, because the federal court does not have jurisdiction over the corporation's counterclaim

    • D. 

      No, because there is supplemental jurisdiction over this properly pled permissive counterclaim.

  • 5. 
    A homeowner from State A sued a man from State B in a federal court in State B. The single-count complaint alleged breach of contract, asked for the remedy of specific performance, and demanded a jury under the Seventh Amendment. The man's lawyers argue that the homeowner is not entitled to a jury. How will the judge rule?
    • A. 

      The homeowner is entitled to a jury because this is a civil case in which the plaintiff seeks purely legal remedies.

    • B. 

      The homeowner is entitled to a jury because this is a civil case in which the plaintiff seeks both legal and equitable remedies.

    • C. 

      The homeowner is not entitled to a jury because this is a civil case in which the plaintiff seeks purely equitable remedies

    • D. 

      The homeowner is not entitled to a jury because the federal court's jurisdiction is based on diversity, and the Seventh Amendment applies only to federal question jurisdiction. B: The homeowner is entitled

  • 6. 
    A man from State A sues a contractor from State B in a State B federal court. The single-count complaint alleged breach of contract, requested damages of $225,000, injunctive relief and demanded a jury. State B law provides a right to a jury in these circumstances. The contractor's lawyers argued that the man was not entitled to a jury. How is the judge most likely to rule?
    • A. 

      There is no right to a jury because the Seventh Amendment guarantees a jury for suits at common law. Injunctive relief is a remedy at equity, not law

    • B. 

      There is a right to a jury because the Seventh Amendment guarantees a jury for suits at common law. The plaintiff here is seeking damages, a legal remedy.

    • C. 

      There is no right to a jury because the Seventh Amendment guarantees a jury for suits at common law. The plaintiff here is seeking both damages and an injunction, an equitable remedy

    • D. 

      There is a right to a jury because state law determines whether there is to be a jury in a federal case based on diversity jurisdiction.

  • 7. 
    A teacher from State A filed a diversity action against a janitor from State B in State B federal court. The janitor was served with a summons from the court, but not a copy of the complaint. What should the janitor's attorney do?
    • A. 

      File a motion to dismiss for lack of subject-matter jurisdiction

    • B. 

      File an answer, including an affirmative defense of insufficient service of process.

    • C. 

      File a motion to dismiss for insufficient process.

    • D. 

      File an answer, including an affirmative defense of lack of personal jurisdiction.

  • 8. 
    A tennis player from State A filed a diversity action in State B federal court against a reporter from State B. The tennis player alleged that the reporter failed to pay a debt due on a valid contract. The reporter filed a motion to dismiss for improper venue, which the court denied. The reporter then filed an answer and argued in defense that the court is without personal jurisdiction and that the action is barred by the statute of limitations. What should the tennis player's attorneys do?
    • A. 

      File a motion to strike both the reporter's lack of personal jurisdiction and the statute of limitations affirmative defenses on the ground that they were waived.

    • B. 

      File a motion to strike only the reporter's affirmative defense for lack of personal jurisdiction on the ground that it has been waived.

    • C. 

      File a motion to strike only the statute of limitations affirmative defense on the ground that it has been waived.

    • D. 

      Continue with the case without filing a motion to strike any of the reporter's affirmative defenses.

  • 9. 
    A contractor filed a diversity action against a homeowner in federal court in State A. The contractor alleges that the homeowner failed to pay $150,000 due on a valid service contract to install a kitchen in the homeowner's home. At trial, however, the homeowner disputed the contract's validity, testifying before the jury that the contractor installed the kitchen as a gift and that exchanged emails referring to a “contract” had been in jest. The homeowner’s testimony also made clear that both parties were citizens of State A. Shortly into the homeowner's presentation of evidence, the contractor's attorney became concerned that the jury was overly sympathetic to the homeowner. What if any options does the contractor's attorney have now?
    • A. 

      File a motion to dismiss for lack of subject-matter jurisdiction.

    • B. 

      File a motion for summary judgment

    • C. 

      File a motion for judgment as a matter of law

    • D. 

      The contractor’s attorney has no option but to continue with the trial.

  • 10. 
    A buyer of goods brought suit in federal court against a seller in the only federal district court in State A, where the seller resides. The buyer's suit was based on a state law claim arising in State B, the buyer's home state. The buyer bought the goods in State A and brought them back to State B. The seller moved to dismiss the buyer's complaint, claiming that the buyer failed to join a manufacturer, an indispensable party from State C. The court ordered that the manufacturer be joined, and the buyer then amended his complaint to add the manufacturer. In its answer to the buyer's amended complaint, the seller asserted lack of personal jurisdiction and improper venue as defenses. The buyer filed a motion to strike the seller's defenses, claiming that the seller waived them. Should the court grant the buyer's motion to strike?
    • A. 

      The court should strike both of the seller's defenses for lack of personal jurisdiction and improper venue because the seller waived these defenses.

    • B. 

      The court should not grant the motion to strike because the seller did not waive either defense

    • C. 

      The court should strike only the defense of improper venue as it was waived by the seller

    • D. 

      The court should strike only the defense of lack of personal jurisdiction as it was waived by the seller.

  • 11. 
    An investor from State A filed an action against a stockbroker from State B in federal court in State A. The stockbroker moved to dismiss the investor's suit against him, arguing that the court lacked personal jurisdiction over him. In support of his motion, the stockbroker submitted his own affidavit and the affidavits of three other persons, detailing the stockbroker's lack of contacts with State A. How should the district court respond to the stockbroker's pre-answer motion?
    • A. 

      The court should refuse to accept the affidavits because pre-answer motions should be decided by referencing only the complaint and the facts which the court may take judicial notice.

    • B. 

      The court should accept the affidavits and convert the stockbroker's motion into one for summary judgment

    • C. 

      The court should deny the stockbroker's motion because, by failing to make a special appearance, the stockbroker consented to the court's exercise of personal jurisdiction over him.

    • D. 

      The court should accept the affidavits and grant the stockbroker's motion if it finds that the stock broker lacks minimum contacts with the state.

  • 12. 
    A shopper brought suit against a grocer in federal court for violation of the Federal Food Drug and Cosmetics Act. In its pre-answer motion, the grocer raised the defenses of lack of personal jurisdiction and lack of subject-matter jurisdiction. The court denies the motion. Thereafter, the grocer realized that it arguably had available to it the defenses of improper venue and failure to join a party. If the grocer now files an answer to the shopper's complaint raising these two additional defenses, should the court consider them?
    • A. 

      Yes, the court should consider whether each defense is a valid defense to the case at bar.

    • B. 

      The court should only consider whether failure to join a party is a valid defense to the case at bar, but it should refuse to consider the merits of the defense of improper venue.

    • C. 

      No, the court should refuse to consider either of the grocer's additional defenses as being a valid defense to the case at bar

    • D. 

      The court should only consider whether improper venue is a valid defense to the case at bar, but it should refuse to consider the merits of the defense of failure to join a party.

  • 13. 
    A jeweler brought suit against a designer in federal court in State A for patent infringement. The case went to a jury trial. After jury deliberations, the jury returned a verdict for the designer. The jeweler then made a timely motion for a new trial, which the district court granted. The designer then timely filed an appeal from the grant of the new trial motion. The jeweler then moved to dismiss the appeal. Should the appellate court grant the jeweler's motion to dismiss the appeal?
    • A. 

      No, because but for the new trial order, final judgment would have been rendered for the designer and it is most efficient for the court of appeals to decide now whether the new trial order was an abuse of discretion, rather than have a new trial proceed to final judgment before any appeal can be taken.

    • B. 

      Yes, because the designer is not aggrieved by the new trial order since he has not lost on any claim or defense.

    • C. 

      Yes, because no final judgment exists and there is no other basis for appellate jurisdiction.

    • D. 

      No, because both the jeweler and the designer have an interest in an appellate determination of whether the new trial order was an abuse of discretion and such a determination now will save both parties from an expenditure of time, money and effort that might be unnecessary.

  • 14. 
    A patient domiciled in State A sued a surgeon domiciled in State B in a federal court in State A, alleging claims for malpractice. The surgeon moved to dismiss the action for lack of personal jurisdiction. The court denied the motion and set discovery cutoff and trial dates. The surgeon has appealed the denial of the motion. Should the appellate court hear the merits of the surgeon's appeal?
    • A. 

      No, because the appellate court lacks jurisdiction over the appeal.

    • B. 

      No, because the district court's decision on jurisdiction is final.

    • C. 

      Yes, because a contrary appellate decision could terminate the action.

    • D. 

      Yes, because the surgeon's personal-jurisdiction challenge raises a constitutional question.

  • 15. 
    An art collector living in State A recently had a painting from his home appraised for $50,000.00. The art collector believes he is the rightful owner of the painting. However, each of his two cousins, a historian living in State B, and a teacher living in State C, also claim rightful ownership of the painting. The art collector would like to resolve, once and for all, who is the true owner of the painting. Neither the historian nor the teacher has ever traveled outside the state where each presently live. Which of the following is true regarding the art collector's ability to bring suit against the historian and teacher in federal court under the federal interpleader statute?
    • A. 

      The art collector can bring an interpleader action against the historian living in State B only, and that court's decision will also be binding on the teacher

    • B. 

      The art collector can bring an interpleader action against both the historian and teacher in State A federal court, even if State A's state court would not have personal jurisdiction over the historian or the teacher under State A's long-arm statute.

    • C. 

      The art collector would have been able to bring an interpleader action in State A federal court against the historian or teacher if the painting had been appraised at more than $75,000.

    • D. 

      The art collector can bring an interpleader action against the historian and the teacher in federal court in State A, but only if a State A state court would have had personal jurisdiction over the historian and teacher under State A's long-arm statute.

  • 16. 
    A man from State A, sues a woman and a driver, citizens of State B, in a two-count complaint filed in a federal district court in State B. The first count alleges that the woman breached a contract, for which the man is owed damages of $186,000. The second count alleges that the driver negligently struck his car and injured him, for which he is due $92,000. Which of the following motions has the greatest likelihood of success?
    • A. 

      A motion to dismiss, filed by the driver, because there is not complete diversity, therefore the court lacks jurisdiction

    • B. 

      A motion to sever the causes of action, filed by the driver, because she has been improperly joined as a defendant.

    • C. 

      A motion to dismiss, filed by the woman, because she is not a required party.

    • D. 

      A motion to dismiss, jointly filed by the woman and the driver, because the case would be better heard in state court.

  • 17. 
    A man from State A sues two mortgage brokers, who are citizens of State A, in federal district court in State A. The man's complaint alleges that the brokers failed to make disclosures that are required by an applicable federal lending law. The first broker then files an answer and a cross-claim against the second broker. The cross-claim alleges that the second broker underpaid him in violation of the federal labor laws. The first broker is seeking $150,000 in damages. The second broker files a motion to dismiss. Will the court grant the motion to dismiss?
    • A. 

      Yes, because there is no diversity of citizenship since all parties are citizens of State A

    • B. 

      No, because the court has jurisdiction over the cross-claim.

    • C. 

      Yes, because the cross-claim does not arise out of the same transaction or occurrence that is the subject matter of the original action.

    • D. 

      No, because the cross-claim satisfies the amount in controversy requirement.

  • 18. 
    A man from State A who has never left the state, sues a computer company in a jurisdictionally valid diversity lawsuit in State A federal court on a single breach of warranty claim. The computer company's affirmative defense is that the man's suit is barred by a final judgment entered in a class action lawsuit in federal court in State B in which the man had been a member of the class. Which of the following is true?
    • A. 

      The man's lawsuit can go forward if he did not receive actual notice of the class action lawsuit.

    • B. 

      The man's lawsuit can go forward if State B did not have personal jurisdiction over the man.

    • C. 

      The man's lawsuit can go forward if he can establish that the class did not receive adequate representation in the class action lawsuit.

    • D. 

      The man's lawsuit can go forward if he can establish that the class was not so numerous that joinder of all members was impracticable.

  • 19. 
    A man, a citizen of State A, is the class representative of a valid class action lawsuit in State B federal court against a State B corporation. The lawsuit claims that the corporation breached the terms of its sales contract by failing to notify consumers after the corporation became aware of certain problems with its product. The class representative and the corporation agreed to settle the case, which would bind all members of the class and provide each member with coupons worth $250 towards the future purchase of any product sold by the corporation. With a class of 100,000 members, the coupons' total value is $25 million, and attorneys' fees were set at 10% ($2.5 million). Which of the following is true?
    • A. 

      The class representative and corporation may, but need not, seek court approval of the settlement agreement

    • B. 

      The court must allow absent class members to opt out of the settlement agreement

    • C. 

      Attorneys' fees must be approved by the court, and this award will be approved.

    • D. 

      The court must hold a settlement hearing.

  • 20. 
    A man, a citizen of State A, had a pacemaker surgery that was unsuccessful. The man properly brought a single-count products liability complaint in State A federal district court against the manufacturer of the pacemaker, a State B corporation, seeking $125,000 in damages. The district court has both subject-matter and personal jurisdiction over the man's lawsuit against the corporation. However, the corporation believes that the surgeon who implanted the pacemaker committed malpractice. The state law that governs the claim allows joint and several liability, and State A does not have personal jurisdiction over the surgeon. Which of the following is true?
    • A. 

      The corporation can move the court to dismiss the action for failure to join a necessary party, and the court will be required to dismiss the action.

    • B. 

      The corporation can move the court to dismiss the action for failure to join a necessary party, and the court will have some discretion in determining whether to dismiss the action.

    • C. 

      The corporation will not be able to successfully move the court to dismiss the action for failure to join a necessary party.

    • D. 

      The corporation can move the court to dismiss the action for lack of personal jurisdiction, because the court does not have personal jurisdiction over the surgeon.

  • 21. 
    An athlete and a cyclist, both citizens of State A, jointly file a single lawsuit in State B federal court, against a bike manufacturer, a State B corporation. The complaint recites that the athlete was injured when the brakes of his Model C bicycle failed to deploy. The athlete seeks $125,000 in damages. The complaint also recites that the cyclist owns a Model D bicycle, and alleges that the manufacturer violated State A's fair trade act with misleading advertisements for its Model D bicycles. The complaint claims the advertisements state the Model D bike weighs only 15 pounds, but the cyclist's factory equipped Model D bike weighs more than 17 pounds. The cyclist seeks $98,000 in compensatory and punitive damages. All relevant actions pertaining to the lawsuit occurred in State A, and the cyclist has never been to State B. Which of the following is the manufacturer's best option?
    • A. 

      File a motion to dismiss the lawsuit for misjoinder of parties

    • B. 

      File a motion to dismiss for lack of subject-matter jurisdiction, because there is not complete diversity of parties.

    • C. 

      File a motion to sever and order plaintiffs to bring separate lawsuits.

    • D. 

      File a motion to dismiss for lack of personal jurisdiction over the cyclist.

  • 22. 
    A cyclist, a citizen of State A, sued a State B corporation with its principal place of business in State C. The complaint, filed in State C federal court, asserted a single claim under State C products liability law, alleging that the cyclist suffered in excess of $85,000 in damage to person and property when the wheel on his bicycle detached in transit due to a defect in the bicycle's rear axle. The corporation purchased its rear axles from a State A manufacturer. Concerned that any defects in the rear axle may have been the fault of the manufacturer, the corporation wants the manufacturer to be part of the lawsuit. What is the best course for the corporation's attorneys to follow?
    • A. 

      Move the court to order that the manufacturer be joined as a required party.

    • B. 

      Serve a summons and complaint on the manufacturer as a third-party defendant

    • C. 

      Join the manufacturer as a defendant under the federal interpleader statute.

    • D. 

      Nothing. The manufacturer cannot be joined in this lawsuit because doing so would destroy the court's diversity jurisdiction.

  • 23. 
    A man, a citizen of State A, sues a car manufacturer, a State B corporation with its principal place of business in State C, in federal district court in State C. Injured in an automobile accident, the man asserts the novel tort theory that car manufacturers should be held strictly liable for losses sustained in accidents because cars are inherently dangerous products. A foreign corporation that manufactures cars that are sold in the United States does not think the car manufacturer is defending itself well in the lawsuit. The foreign corporation is concerned that an adverse ruling might generate tort doctrines that will leave it and the world's thirty other car manufacturers vulnerable to many lawsuits. What is the most promising strategy for the foreign corporation's lawyers to follow?
    • A. 

      File a motion with the court in which the foreign corporation argues that it is an indispensable party and must be joined

    • B. 

      File a motion with the court in which the foreign corporation seeks permissive intervention.

    • C. 

      File a motion asking that the court certify a class representing all automobile manufacturers.

    • D. 

      File a motion with the court in which the foreign corporation seeks permissive joinder.

  • 24. 
    A man, a citizen of State A, files suit in State B federal court as representative of a class against a State B corporation. Thereafter, he files a motion to certify the class consisting of approximately 250 persons from across the United States. The man claims that the corporation defrauded consumers under State B law by failing to refund taxes it collected after State B reduced its sales tax. The man seeks compensatory damages of $77,000, though no other member of the class is owed more than $100. The corporation urges the court not to certify the class. What is the judge likely to do?
    • A. 

      Certify the class. There is diversity jurisdiction since the man's claim exceeds $75,000 and the man and the corporation have diverse citizenship

    • B. 

      Not certify the class. The man's claims are not typical of the claims of the rest of the class.

    • C. 

      Certify the class. Questions of law or fact common to class members predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

    • D. 

      Not certify the class. There is no jurisdiction under the Class Action Fairness Act since the matter in controversy does not exceed $5,000,000.

  • 25. 
    A farmer, a citizen of State A, sues a rancher, a citizen of State B, in federal district court in State B. The farmer asks the court to quiet title to certain property in State B on which the rancher currently resides. The rancher believes the property was bequeathed to her, but the rancher knows that a cousin of hers – a man who is a citizen of State A – believes that the property belongs to him. The rancher files a motion to dismiss for failure to join an indispensable party. Which of the following is true?
    • A. 

      The court must dismiss the action. The man is an indispensable party, and the court lacks subject-matter jurisdiction over the man's claim.

    • B. 

      The court may retain the case. Though the man is an indispensable party and the court lacks subject-matter jurisdiction over the man's claim, the court may retain the case without the man's joining the lawsuit if the court determines in equity and good conscience that the action should proceed.

    • C. 

      The court may retain the case. The man is not an indispensable party.

    • D. 

      The court may retain the case. Although the man is an indispensable party, the court has subject-matter jurisdiction over his claim and therefore can order that he be joined as a party.

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