USLawEssentials Civ Pro Essentials 1

2.

A plaintiff files a complaint in federal court which includes a short and plain statement showing that he is entitled to relief and a demand for $50,000. The plaintiff alleges that the defendant violated federal antitrust law. If the complaint is dismissed, which of the following is the most likely reason?

The amount in controversy is less than $75,000.
The amount is controversy is greater than $75,000.
The Court lacks personal jurisdiction over the defendant.
The Courts lacks personal jurisdiction over the plaintiff.

Correct Answer

A. The Court lacks personal jurisdiction over the defendant.

Explanation

(A) & (B) are relevant to the amount in controversy. But this case appears to be based on federal question jurisdiction so citizenship and the amount in controversy requirement are irrelevant.
(D) is wrong because if the plaintiff initiates the case in a federal court that court should have personal jurisdiction over her.

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3.

Phillip sues Dennis in federal court for breach of contract to install a pool in his backyard. According to Dennis, Phillip failed to complete the final installment payment on the contract. Which of the following is most accurate regarding a breach of contract claim by Dennis against Phillip?

Dennis has a mandatory counterclaim against Phillip because the counterclaim arises from the same transaction and occurrence as Phillip’s claim.
Dennis has a permissive counterclaim against Phillip because the counterclaim is based on an affirmative defense.
Dennis has a mandatory counterclaim against Phillip because the Court has personal jurisdiction over Phillip.
Dennis has a permissive counterclaim against Phillip because Dennis’s claim is based upon the same case and controversy as Phillip’s claim..

Correct Answer

A. Dennis has a mandatory counterclaim against Phillip because the counterclaim arises from the same transaction and occurrence as Phillip’s claim.

Explanation

(A) is the right answer because it correctly states the standard under Rule 13 for mandatory counterclaims. Dennis’s claim arises from the same transaction and occurrence as the subject matter of Phillip’s claim. (B) misstates the standard for permissive counterclaims and (C) misstates the standard for mandatory counterclaims. (D) relies on the “case and controversy” language of 28 USC 1367(a) which is relevant to supplemental subject matter jurisdiction but is not the standard for determining whether a counterclaim is mandatory.

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4.

Penny sues Darryl in federal court for breach of contract. If Darryl moves to dismiss the complaint for failure to state a claim, under what circumstances should the court grant the motion?

The complaint fails to include proof that Penny is entitled to relief by a preponderance of the evidence.
The complaint fails to include a short and plain statement that Penny is more likely than not entitled to the relief that she seeks.
The complaint fails to include a short and plain statement showing that Penny is plausible entitled to the relief that she seeks.
The complaint fails to demonstrate that there is no disputed material facts and that Penny is entitled to relief as a matter of law.

Correct Answer

A. The complaint fails to include a short and plain statement showing that Penny is plausible entitled to the relief that she seeks.

Explanation

(C) is correct because it correctly states the Rule 8 standard as interpreted in the Supreme Court’s decisions Twombly and Iqbal: a Complaint must contain a short and plain statement alleging facts that show the plaintiff is plausibly entitled to the relief that he seeks.
The Complaint does not require proof nor does it require the plaintiff to show that he is likely to prevail, therefore, choices (A) and (B) are wrong. (D) describes the standard to prevail on summary judgment, which is far more stringent.

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5.

Patrick, a citizen of California, sues Dapper, Inc., incorporated and headquartered in New Jersey, for $85,000 alleging that he was injured by Dapper's hair gel. Sally, a citizen, of Alaska, asserts claims against Dandy in the same lawsuit and alleges $6 in damages. Does the Court have subject matter jurisdiction over the claims in this case?

The Court lacks jurisdiction over both claims because Sally's claim does not allege a sufficient amount in controversy and that insufficiency is imputed to Patrick.
The Court has diversity jurisdiction over Patrick's claim and will have supplemental jurisdiction over Sally's claim if her case arises out of the same case or controversy.
The Court has diversity jurisdiction over both claims because the claims together allege $85,006 in damages.
The Court has jurisdiction over both claims because Patrick's claim satisfies diversity jurisdiction and Sally is diverse from both Patrick and Dandy.

Correct Answer

A. The Court has diversity jurisdiction over Patrick's claim and will have supplemental jurisdiction over Sally's claim if her case arises out of the same case or controversy.

Explanation

28 USC §1367 establishes supplemental jurisdiction over Sally’s claim, provided she and Patrick have related claims - - their lawsuits must form part of the same case or controversy. The statute does not permit supplemental jurisdiction over claims by plaintiffs joined pursuant to Rule 19 but courts do have supplemental jurisdiction over a lawsuit by plaintiffs joined pursuant to Rule 20.
(A) is wrong because one plaintiff who does not meet the amount in controversy requirement will not contaminate other plaintiffs’ claims.
(C) is wrong because the Court will not aggregate claims by multiple plaintiffs (except where there is a common and undivided interest - - e.g., tenants in common suing together with respect to property).
(D) is wrong to state that the court has jurisdiction because Sally satisfies diversity. That Sally is a citizen of a different state from Patrick is irrelevant. She would need to be diverse from Dapper and also satisfy the amount in controversy requirement for the court to assert diversity jurisdiction.

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6.

Penny is the lead representative in a class action against Dark, Inc. She is a citizen of Delaware. Dark is incorporated and headquartered in New York. 2/3 of the class members in the case are from California, Oregon, Washington, and Alaska. Several class members are residents of New York. The lawsuit alleges at least $12 million in damages and is filed in a Texas federal court but the average class member's claim is around $30,000. There are thousands of class members. Does the federal court have subject matter jurisdiction over this claim?

Yes, because there are more diverse class members than non-diverse.
Yes, because there is minimum diversity and the action seeks more than $5 million in damages.
No, because there is no diversity jurisdiction.
No, because each individual class member has not asserted more than $75,000 in damages.

Correct Answer

A. Yes, because there is minimum diversity and the action seeks more than $5 million in damages.

Explanation

The Court will have subject matter jurisdiction over the case because there is diversity between the class representative and the defendant, the case alleges more than $5 million in damages, and there are at least 100 class members. Only diversity between one class member and the defendant is required pursuant to the Class Action Fairness Act (28 USC §1332(d)).
Courts may decline jurisdiction where between 1/3 and 2/3 of the class members and at least one of the primary defendants are citizens of the forum state.
Courts must decline jurisdiction where more than 2/3 of the class members and at least one of the primary defendants are citizens of the forum state.
(A) is wrong because only one class member must be diverse from the defendant.
(C) and (D) are wrong because each class member is not required to be diverse nor does each class member have to plead more than $75,000 in damages.

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7.

Plaintiff demands that defendant Diagnostics, Inc. produce electronically stored information (ESI). Diagnostics Inc. responded that it will produce the documents requested but will print them out. Of the following, what would plaintiff's best argument be that Diagnostics may not provide the electronic documents as hard copies?

The cost of printing the hard copies, even if borne by Diagnostics, is wasteful.
Absent agreement otherwise, ESI must be printed out as hard copies but also must be transmitted in a manner reasonably calculated to preserve metadata and other inherent components of the information.
The documents when printed out will no longer constitute best evidence because they are hard copy representations of electronically stored information.
Absent agreement otherwise, a party producing ESI must produce the information in the form it is normally maintained.

Correct Answer

A. Absent agreement otherwise, a party producing ESI must produce the information in the form it is normally maintained.

Explanation

(D) best states the Rule 34 requirement for producing ESI.
(C) is wrong because it misstates the best evidence rule and is not relevant to the issue.
(A) is not the best answer, although the cost of production might be relevant in another context to discovery disputes. Under amended Rule 26 the scope of discoverable information is proportional to, among other things, the needs of the case and the burden of production.
(B) is wrong because there is no requirement that a party produce ESI in more than one form.

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8.

Paula sues Davida and Della for breach of contract. Paula lives in the Eastern District of New York. Davida lives in the Northern District of California and Della lives in the Central District of California. The breach of contract occurred in New Jersey, Where would venue be appropriate?

EDNY, CDCA, and NDCA
EDNY and NJ
CDCA, NDCA, and NJ
CDCA and NDCA

Correct Answer

A. CDCA, NDCA, and NJ

Explanation

enue, pursuant to 28 USC §1391, is appropriate in a jurisdiction where a substantial number of the underlying events occurred or, if all defendants are resident in the same state, in any district in which one defendant resides.
The incorrect answer choices for this question are either incomplete or include EDNY. EDNY is inappropriate because EDNY is plaintiff’s residence and does not affect venue.

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9.

Pauline and Darryl are litigating in federal court. They agree that a verdict need not be unanimous and that a majority of jurors may decide the case. The jury returns a verdict in favor of Darryl by a vote of 7-5. Should the judge direct the jury to deliberate further to reach a unanimous decision?

No because the parties agreed that the jury did not need to return a unanimous verdict.
No, because it would be futile and the judge should order a new trial.
Yes, unless there is clear and convincing evidence that further deliberation would be futile.
Yes, because the jury's decision must be unanimous.

Correct Answer

A. No because the parties agreed that the jury did not need to return a unanimous verdict.

Explanation

As a general rule, jurors in federal cases must reach a unanimous decision, however, the parties can agree otherwise, therefore, (A) is the best answer. (B), (C), and (D) are wrong because parties can agree to depart from the general rule. (B) and (C) are also irrelevant in their discussion of when judges should ask jurors to continue to deliberate.

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10.

Dustin now permanently resides in New York. Three years ago he was involved in a car accident in California that injured Perry. At the time of the accident Dustin lived in Oregon and frequently drove from Oregon to California to visit friends. Perry sues Dustin in New York federal court. Does New York have personal jurisdiction over Dustin?

No, because the accident occurred out-of-state and there are no policy reasons to support adjudication in a New York court.
Yes, because Dustin is a citizen of New York.
No, because at the time of the accident Dustin was not domiciled in New York.
Yes, because David frequently drove out of state and thus is subject to jurisdiction in any of the contiguous states.

Correct Answer

A. Yes, because Dustin is a citizen of New York.

Explanation

Defendants are subject to personal jurisdiction in the states in which they are citizens (usually their permanent residence). (B) is the best answer because it correctly states that New York has power over Dustin because Dustin is a citizen of New York. Defendants may also be subject to specific personal jurisdiction in another state if they engage in activity that affects another state and the litigation results from that activity.
(A) is wrong to the extent it states that there are no policy reasons to support jurisdiction over Dustin in New York. The answer is accurate to the extent that California may also have personal jurisdiction over him based on his activities in the state.
(C) is wrong because jurisdiction is based on where he is currently a citizen, not a former residence.
(D) is wrong because merely traveling to other states does not result in personal jurisdiction in those states.

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11.

A lawyer successfully challenged two prospective jurors on grounds that they were currently employees of the defendant. She discovers that two other jurors might be relatives of the defendant. Which of the following is most accurate?

She may challenge one of the two jurors for cause.
She cannot challenge either of the two jurors for cause.
She can challenge both jurors for cause and has three peremptory challenges remaining.
She can challenge both jurors for cause and has six peremptory challenges remaining.

Correct Answer

A. She can challenge both jurors for cause and has three peremptory challenges remaining.

Explanation

Rule 47(b) and 28 USC §1870 limit parties to three peremptory challenges but there is no limit to challenges for cause.
Because she challenged jurors for cause, the attorney should have three peremptory challenges remaining, making (C) the best answer.
(A), (B), and (D) each misstate the number of peremptory challenges remaining for the lawyer.

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12.

Following a vehicle accident in which a truck collided with her car, Patty, who resides in State A, sues Daring Delivery Company, which is headquartered and incorporated in State B. The lawsuit alleges $80,000 in damages. Patty sues Daring in State B’s trial level State Court. Which of the following is true?

The State B trial court may transfer the case to State B’s federal district court.
Daring Delivery Company may remove the case to State B’s federal district court based on diversity.
Patty may remove the case to State A’s federal district court.
None of the above.

Correct Answer

A. None of the above.

Explanation

(A) is wrong because the state court cannot transfer a case to a federal court. (B) is wrong because Daring is at home in State B and is not allowed to remove a case to federal court located in his home state. If the case were in State A, where Daring is not a citizen, removal would be permissible (28 USC §1441). (C) is wrong because a party cannot remove the case from a state court to a federal court in another state.

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13.

Which of the following is NOT true regarding the scope of discoverable information pursuant to Rule 26 of the Federal Rules of Civil Procedure.

Discoverable information is limited to admissible evidence that is relevant to any party’s claim or defense.
Discoverable information includes non-privileged information that is relevant to any party’s claim or defense and proportional to the needs of the case.
Discoverable information may be limited by court order.
Discoverable information includes electronically stored information that is reasonably accessible.

Correct Answer

A. Discoverable information is limited to admissible evidence that is relevant to any party’s claim or defense.

Explanation

(A) incorrectly states that discoverable information must be admissible. Rule 26 does not require information to be admissible. All of the other answers are consistent with the requirements of Rule 26.

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14.

Perry is injured by a Dunking coffee shop’s employee who carelessly spills hot coffee on Perry’s hand. The injury causes over $150,000 in injuries. Perry sues Dunking in federal court but does not sue the employee. The employee is a citizen of New York as is Perry. On a motion by Dunking to dismiss the case for failure to join a necessary and indispensable party the Court should:

Grant the motion because the employee is both necessary and indispensable.
Deny the motion because the employee is not necessary to the action.
Grant the motion, provided Dunking can demonstrate that the employee is aware of information that is relevant to a defense in the case.
Deny the motion, provided Perry can prove that the employee no longer works for Dunking.

Correct Answer

A. Deny the motion because the employee is not necessary to the action.

Explanation

To determine whether a case should be dismissed for failure to join an indispensable party courts apply a two-step test: First is an absent party necessary to be joined? Second, is it feasible to join the absent party?
An absent party is required to be joined if in his absence the court cannot provide relief to the parties. As a general rule, joint tortfeasors do not have to be joined in the same case. Likewise, when employees commit a tort, plaintiffs do not have to join the employer and the employee in the same action. Assuming our general rules hold, the court should not dismiss the case because the action can proceed against Dunking without the employee.

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15.

David is sued for fraud because he misrepresented his academic credentials in a brochure advertising his medical services. David raises the defense of mistake. Which of the following is most accurate regarding this defense?

David may generally allege that he made a mistake.
David must, by affidavit or declaration, explain how he could have made a mistake regarding his own education.
David must specifically allege the circumstances of his mistake but may generally allege his mistaken mental state.
David must specifically allege both the circumstances of his mistake and his mistaken mental state.

Correct Answer

A. David must specifically allege the circumstances of his mistake but may generally allege his mistaken mental state.

Explanation

Rule 9 provides that some pleadings require more specificity than the general pleading requirements of Rule 8.
Pleadings that include, among other things, allegations of fraud or mistake are subject to the heightened requirements of Rule 9. Although mental state my be alleged generally, the circumstances of the fraud or mistake must be alleged with specificity.
Answers (A) & (D) are wrong because they do not distinguish between the pleading requirements for alleging mental state and pleading the circumstances of the fraud or mistake. (B) is wrong because the Federal Rules of Civil Procedure do not require affidavits, declarations, or documentary evidence to prove allegations at the pleading stage.

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16.

Percival sues Doug for fraud. He alleges that Doug sent him a sales brochure with false statements. In his Answer and Affirmative Defenses Doug denies that he sent a sales brochure to Percival and, in the alternative, claims the sales brochure did not contain any false statement. May Doug deny a brochure was sent to Percival and also claim that the brochure was truthful?

No, because the statements are mutually exclusive meaning that at least one argument is a fraud on the court.
No, because a defendant may not plead in the alternative.
Yes, because a defendant may plead a fraud defense with particularity.
Yes, because Rule 8 allows pleading in the alternative.

Correct Answer

A. Yes, because Rule 8 allows pleading in the alternative.

Explanation

Rule 8 provides for pleading in the alternative by either the plaintiff or the defendant so answers (A) and (B) are wrong. (C) is irrelevant to the question but it is true that a plaintiff must allege fraud with particularity according to Rule 9.

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17.

Peaceful Hospital, a citizen of New York, alleges that Due Benefits, a provider of state-sponsored Medicaid insurance benefits, and also a citizen of New York, failed to reimburse the hospital for certain payments. Due Benefits is required to reimburse the hospital at “Medicaid rates” but the parties dispute the reimbursement amount. Federal law determines the Medicaid rate and Due Benefits insists that the amount it paid was consistent with the Medicaid rate. Peaceful alleges state law breach of contract claims. If Due Benefits chooses to remove, does a federal court have jurisdiction over this case?

Yes, because the court will likely have to consider a federal law issue.
Yes, because federal law created the claim.
No, because the complaint is predicated upon state law claims and Due Benefits is raising a federal law as a defense.
No, because a federal court cannot seize a case from state court.

Correct Answer

A. No, because the complaint is predicated upon state law claims and Due Benefits is raising a federal law as a defense.

Explanation

(C) is the best answer because Peaceful is alleging a state law breach of contract claim and it appears that the Medicaid argument is a defense. Removal is appropriate pursuant to 28 USC §1441 if federal law preempts the claim or if the claim creates a substantial federal question. Provided the plaintiff does not engage in “artful pleading” to avoid alleging what is obviously a federal claim, a federal court will likely lack jurisdiction. Where the defendant is alleging federal law as a defense, a federal court is unlikely to assert subject matter jurisdiction.
(A) is wrong because removal is not appropriate merely because a federal issue arises in a state court case.
(B) is wrong because federal law did not create the claim. This is a breach of contract case.
(D) is wrong because although it is true that a federal court cannot “seize a case from a state court” the question asks whether removal is appropriate.

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18.

Penelope is a citizen of New Jersey and sues Duncan, a citizen of New York following a car accident. She alleges $80,000 in damages. Duncan brings a Rule 14 claim against Terrapin, who is also a citizen of New York, for contribution, on grounds that Terrapin must reimburse him for any liability to Penelope. Does the federal court have subject matter jurisdiction over Duncan's claim against Terrapin?

Yes, because the federal court will have supplemental jurisdiction although there is no diversity jurisdiction.
Yes, because the federal court will have diversity jurisdiction based on the amount in controversy.
No, unless the claim were a mandatory counterclaim.
No, because the parties are not diverse.

Correct Answer

A. Yes, because the federal court will have supplemental jurisdiction although there is no diversity jurisdiction.

Explanation

(A) is the correct answer because there is no diversity jurisdiction between Duncan and Terrapin and the court will need to rely on supplemental jurisdiction pursuant to 28 USC §1367. 28 USC 1367 provides that in a claim by a defendant against a third party under Rule 14, the court will have supplemental jurisdiction provided the claim arises out of the same case or controversy as the original claim.
(B) is wrong because supplemental jurisdiction means diversity between the defendant and the third party is unnecessary.
(D) is wrong because the facts tell us the parties are not diverse. If the parties were diverse the court would not need to rely on supplemental jurisdiction
(C) is wrong because this is not a counterclaim against the plaintiff. The defendant is impleading a third party for contribution pursuant to Rule 14.

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19.

Paul sues Delta Inc for breach of contract in state court for $100,000. Paul is a citizen of New York, Delta is incorporated in Delaware and is headquartered in Illinois. Which of the following is true?

Delta may file a motion to remand based on diversity.
Delta may file a motion to remove based on diversity.
Delta may file a notice of removal based on diversity.
Delta may file a notice of remand based on diversity.

Correct Answer

A. Delta may file a notice of removal based on diversity.

Explanation

Parties may remove a case to federal court if the court could originally have asserted jurisdiction over the claim. The process requires only a notice of removal to the state court. There is no need to file a motion.
Remand is where a federal court returns the case to state court because it does not have federal jurisdiction. To remand a case after removal requires a motion.
(A) and (D) are wrong because they imprecisely refer to remanding a case to federal court. (B) is wrong because it incorrectly states that removal requires a motion.

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20.

Pauline works for Diagnostics, Inc. and sues the company for violating state worker compensation laws as well as for violating federal laws against discrimination. Diagnostics removes the case to federal court based on a federal question. If plaintiff moves to remand, the Court should

Sever the worker compensation claim and remand those claims to state court. The federal court should adjudicate purely federal law discrimination claims.
Grant the motion and remand the entire case back to state court because the worker compensation claims are not removable and state courts may decide federal questions.
Deny the motion to remand and decide both claims, unless the state law claim must be severed after removal.
Deny the motion to remand provided Diagnostics posts a bond should the Court later determine that it lacks subject matter jurisdiction.

Correct Answer

A. Deny the motion to remand and decide both claims, unless the state law claim must be severed after removal.

Explanation

(C) most accurately states the rule in 28 USC §1441(c) that a federal court may decide both federal and state law claims unless the state law claim is non-removable. If the state law claim is non-removable then the federal court should sever the case and remand the non-removable claims back to the state court.
(A) is wrong because a federal court may adjudicate state law claims.
(B) is not accurate because nothing in the question demonstrates that the state law claim would be non-removable. Even if it the state law claim were non-removable, the federal court could decide the federal question - - the defendant would still have the right to remove the case to have that claim decided.
(D) is wrong because there is no bond requirement.

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Uslawessentials Civ Pro Essentials 1

Which document typically initiates a lawsuit in federal court?

Quiz Preview

Phillip sues Dennis in federal court for breach of contract to install a pool in his backyard. According to Dennis, Phillip failed to complete the final installment payment on the contract. Which of the following is most accurate regarding a breach of contract claim by Dennis against Phillip?

Penny sues Darryl in federal court for breach of contract. If Darryl moves to dismiss the complaint for failure to state a claim, under what circumstances should the court grant the motion?

Paula sues Davida and Della for breach of contract. Paula lives in the Eastern District of New York. Davida lives in the Northern District of California and Della lives in the Central District of California. The breach of contract occurred in New Jersey, Where would venue be appropriate?

Pauline and Darryl are litigating in federal court. They agree that a verdict need not be unanimous and that a majority of jurors may decide the case. The jury returns a verdict in favor of Darryl by a vote of 7-5. Should the judge direct the jury to deliberate further to reach a unanimous decision?

A lawyer successfully challenged two prospective jurors on grounds that they were currently employees of the defendant. She discovers that two other jurors might be relatives of the defendant. Which of the following is most accurate?

Which of the following is NOT true regarding the scope of discoverable information pursuant to Rule 26 of the Federal Rules of Civil Procedure.

David is sued for fraud because he misrepresented his academic credentials in a brochure advertising his medical services. David raises the defense of mistake. Which of the following is most accurate regarding this defense?

Paul sues Delta Inc for breach of contract in state court for $100,000. Paul is a citizen of New York, Delta is incorporated in Delaware and is headquartered in Illinois. Which of the following is true?

Pauline works for Diagnostics, Inc. and sues the company for violating state worker compensation laws as well as for violating federal laws against discrimination. Diagnostics removes the case to federal court based on a federal question. If plaintiff moves to remand, the Court should