Uslawessentials Civ Pro Essentials 2

1/20 Questions

Porgy sues Declan for breach of an oral contract in federal court. Following discovery, Declan moves for summary judgment on grounds that there is no evidence that the parties actually entered into a contract. Among other things, he demonstrates that there is no evidence that the parties ever spoke to or even knew of each other prior to the litigation. Opposing the motion, Porgy cites to her Complaint which pleads an offer, acceptance, and consideration, thereby establishing the elements of a contract. Should the court grant or deny the motion?
- Deny the motion, because the well-pleaded allegations of the contract, accepted as true, create an issue of fact for the jury.
- Deny the motion, because defendant cannot “prove a negative,” therefore, the jury should determine whether the parties entered into a contract.
- Grant the motion, because Porgy, as the nonmoving party, must introduce evidence that there is an issue of material fact as to an element of her case.
- Grant the motion provided Declan's motion raises arguments with which a rational juror could agree.

About This Quiz

This quiz will test your knowledge of pleading requirements, subject matter jurisdiction, personal jurisdiction, and other topics tested on law school and bar examinations.
You can contact the author of the quiz at daniel@uslawessentials. Com. Also, please visit the USLawEssentials blog.
If you need tutoring for a JD or LLM course, or for help with your Bar preparation, please See moreget in touch.

Uslawessentials Civ Pro Essentials 2 - Quiz

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2.

Following a car accident, Penelope sue Dennis in California for $135,000. The jury awards her $60,000. Penelope then sues Dennis for $76,000 in New York based on the same accident. If the New York federal court dismisses the claim it will most likely be because
- Penelope has a good-faith claim of only $75,000 in damages.
- The lawsuit is precluded by the prior litigation in California.
- If Dennis prevails in the New York lawsuit the California court will need to reconsider its judgment.
- California is a better venue for this case.
Correct Answer

A. The lawsuit is precluded by the prior litigation in California.

Explanation

Claim preclusion prohibits Penelope from re-litigating her case. She cannot sue Dennis again based on the same transaction or occurrence as the original lawsuit in California.

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3.

Patience travels to California to purchase a classic car from Deluxe Driving, Inc. Deluxe has a sign in its showroom reading, “Welcome Visitors from Near and Far!” While in the showroom Patience trips over a display. After returning to her native state of Oregon she sues Deluxe Driving in federal court for negligence. Does the Oregon federal court have personal jurisdiction over Deluxe Driving?
- Yes, Patience is from Oregon, therefore, personal jurisdiction is not an issue.
- Yes, Deluxe Driving knew or should have known that customers from Oregon may injure themselves.
- Probably not because courts may not assert personal jurisdiction over a defendant that is geographically present in another state.
- Probably not because Deluxe Driving did not have relevant minimum contacts with Oregon.
Correct Answer

A. Probably not because Deluxe Driving did not have relevant minimum contacts with Oregon.

Explanation

To assert personal jurisdiction over an out-of-state defendant, a state or federal court must establish that the defendant had relevant minimum contacts with the state. Deluxe did not apparently advertise in Oregon or deliver products to Oregon. The sign suggests that Deluxe knew customers from far away might visit Deluxe but there is nothing in the question that suggests Deluxe reaches out to customers in other states. (D) is the best answer, because without sufficient minimum contacts, the Due Process Clause prohibits a court from establishing jurisdiction over the defendant.
(A) is wrong because Patience’s residence is not relevant. Even if Patience were a citizen of a state other than Oregon, by suing in Oregon she submitted to the court’s personal jurisdiction. The issue is jurisdiction over Deluxe.
(B) is wrong because even if Deluxe knew that customers travelled to visit Deluxe from out of state, the relevant inquiry is whether Deluxe directed activity towards Oregon that would enable Oregon to assert personal jurisdiction over it.
(C) is wrong because personal jurisdiction is no longer limited by geography. A court may assert jurisdiction over defendants who are not physically present within the state’s borders.

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4.

Following a civil litigation in which the court found in favor of the defendant as a matter of law, plaintiff appealed. He argues that the judge erroneously gave credence to the testimony of a witness and misstated the standard for granting judgment as a matter of law. Which of the following is most accurate regarding the appeal?
- The appellate court should not set aside findings of fact based on the testimony of the witness unless they are clearly erroneous but the trial judge's standard for granting judgment as a matter of law should be reviewed de novo with no deference.
- Neither the trial court's finding of fact based on the witness's testimony nor his standard to grant judgment as a matter of law is appealable.
- The appellate court should review both the finding of fact based on the testimony of the witness and the standard for granting judgment as a matter of law de novo with no deference.
- Neither the finding of fact based on the testimony of the witness nor the standard to grant judgment as a matter of law should be overruled unless they were clearly erroneous.
Correct Answer

A. The appellate court should not set aside findings of fact based on the testimony of the witness unless they are clearly erroneous but the trial judge's standard for granting judgment as a matter of law should be reviewed de novo with no deference.

Explanation

To assert personal jurisdiction over an out-of-state defendant, a state or federal court must establish that the defendant had relevant minimum contacts with the state. Deluxe did not apparently advertise in Oregon or deliver products to Oregon. The sign suggests that Deluxe knew customers from far away might visit Deluxe but there is nothing in the question that suggests Deluxe reaches out to customers in other states. (D) is the best answer, because without sufficient minimum contacts, the Due Process Clause prohibits a court from establishing jurisdiction over the defendant.
(A) is wrong because Patience’s residence is not relevant. Even if Patience were a citizen of a state other than Oregon, by suing in Oregon she submitted to the court’s personal jurisdiction. The issue is jurisdiction over Deluxe.
(B) is wrong because even if Deluxe knew that customers travelled to visit Deluxe from out of state, the relevant inquiry is whether Deluxe directed activity towards Oregon that would enable Oregon to assert personal jurisdiction over it.
Decisions to grant or deny judgments as a matter of law are reviewed de novo, as if the appellate court were hearing the case for the first time.
Appellate courts review findings of credibility for clear error.
(B) is wrong because the appellate court’s responsibility is to review the judge’s determinations. Both (C) and (D) misstate the standard of review.

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5.

Lead plaintiff alleges that a large retail store engaged in age discrimination and brings a Rule 23(b)(3) class action. Which of the following is most accurate regarding requirements to certify the class?
- The court must determine that the lead plaintiff is more capable than other class members to represent the class.
- The Court must determine that the plaintiff has been approved by 2/3 of the class members
- The court must determine that there are common questions of law or fact among the class members, including proof that the defendant actually discriminated against the class members.
- The court must determine that no class member will opt out.
Correct Answer

A. The court must determine that there are common questions of law or fact among the class members, including proof that the defendant actually discriminated against the class members.

Explanation

To certify a class, the court must determine that there are common questions of law and fact among the class members. The Supreme Court explained in Dukes v. Walmart Stores that this requires the prospective class to show that each class member was injured by a violation of the same statute, which may require proof beyond the pleadings.
(A) is wrong because the lead plaintiff must show that she will capably and fairly represent the class, not that she is the best of all possible representatives.
(B) is wrong because class members do not vote on the representative.
(D) is correct to the extent that 23(b)(3) class actions include an opt-out provision but there there is no requirement that the Court determine whether some members will opt out for purposes of class certification.

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6.

A New Jersey state employee allegedly violated Pat's Constitutional rights. Pat, a citizen of New Jersey, sues pursuant to 42 USC §1983. May she sue the employee and the state in federal court?
- Neither, because the parties are not diverse.
- She may sue the employee based on federal question jurisdiction, however, the state is immune regardless of whether subject matter jurisdiction exists.
- Yes, provided Pat meets the amount in controversy requirement.
- Neither, because federal courts do not have subject matter jurisdiction over alleged Constitutional violations by state employees.
Correct Answer

A. She may sue the employee based on federal question jurisdiction, however, the state is immune regardless of whether subject matter jurisdiction exists.

Explanation

A federal court could assert subject matter jurisdiction over Pat’s claims against the employee based on a federal question. The state of New Jersey would be immune from the lawsuit. Although it is not settled whether sovereign immunity means a court lacks subject matter jurisdiction, under all circumstances the state will be dismissed from the case.
(A) and (C) raise criteria relevant to diversity jurisdiction but that is not the basis for the lawsuit.
(D) is wrong because 42 USC § 1983 provides for jurisdiction over Constitutional claims against state employees. Pat could have selected to sue in a state court, because state courts have concurrent jurisdiction over 42 USC § 1983 claims, but she was also free to litigate her claim in federal court.

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7.

Plaintiff is a truck driver who complains he is owed overtime wages. He sues his employer trucking company in federal court based on diversity. Following discovery, Defendant moves for summary judgment on grounds that federal law regulating interstate trucking provides the company with a surefire defense. The federal law only applies to trucking companies whose trucks regularly travel in interstate commerce. Plaintiff opposes the motion for summary judgment by affidavit stating that he needs discovery as to whether the trucking company’s trucks regularly travel in interstate commerce. Which of the following is most accurate?
- The Court should grant the motion because the affidavit does not create a material issue for trial.
- The Court should grant the motion because the affidavit fails to dispute that the defendant is entitled to judgment as a matter of law.
- The Court should deny the motion because the affidavit provides specific reasons Plaintiff cannot present facts essential to its opposition.
- The Court should deny the motion because the affidavit provides at least a scintilla of evidence that defendant failed to pay overtime wages.
Correct Answer

A. The Court should deny the motion because the affidavit provides specific reasons Plaintiff cannot present facts essential to its opposition.

Explanation

(C) is the best answer because courts will generally deny (or allow additional time) where the nonmoving party, by affidavit or declaration, can identify specific reasons it requires additional discovery to oppose summary judgment.
(A) is wrong because in this case the affidavit does not need to create a material fact for trial. (B) is also wrong because the affidavit or declaration does not need to identify an issue of law.
(D) is wrong because once the moving party meets its burden on a motion for summary judgment, the nonmoving party must demonstrate that there is a material issue for trial - - meaning a juror could reasonably find against the moving party. A “scintilla” of evidence or a “metaphysical” possibility will not suffice to defeat a summary judgment motion.(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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8.

Plaintiff sues Daredevil Delivery company following an accident in which a Daredevil employee collided with him in an intersection. Which of the following is most accurate regarding Daredevil's initial mandatory disclosures if its decision to hire the employee is relevant to a defense in this case?
- Daredevil must disclose the names and addresses of witnesses likely to have relevant information regarding the decision to hire the employee.
- Daredevil must designate a witness who will testify on behalf of Daredevil regarding Daredevil's decision to hire the employee.
- Daredevil must identify all documents regarding its decision to hire the employee and convert them to readily accessible electronic information.
- Daredevil must file with the court a list of privileged documents relevant to the decision to hire the employee.
Correct Answer

A. Daredevil must disclose the names and addresses of witnesses likely to have relevant information regarding the decision to hire the employee.

Explanation

(A) is the best answer because Rule 26 initial disclosures require parties to identify witnesses likely to have relevant information - - which in this case would include individuals likely to have relevant information regarding the decision to hire the employee.
(B) is wrong because there is no need at this point to designate a witness. Possibly, at a later stage in the litigation, plaintiff may demand that defendant designate a witness to be deposed on a particular topic pursuant to Rule 30(b)(6).
(C) is wrong because no Rule requires parties to convert documents into an electronic form.
(D) is wrong because parties are not required to identity privileged documents for the Court. During the course of discovery Rule 26 requires parties to expressly claim privilege and describe the nature of the documents withheld in response to discovery requests but that is not relevant to this question.

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9.

Peck hires Diver Down scuba company to teach him how to scuba dive. As a result of an underwater accident Peck is injured and he later starts a website dedicated to "informing the public about how Diver Down is run by criminals who don't care about their clients." Peck sues Diver Down for various state law torts in federal court. May Diver Down sue Peck for disparaging the company in state court after the federal action ends?
- No, not if the claim by Diver Down is a compulsory counterclaim.
- No, unless the amount in controversy is less than $75,000.
- Yes, because there is no basis for federal jurisdiction over Diver Down's state law claim.
- Yes, because counterclaims are a type of permissive joinder.
Correct Answer

A. No, not if the claim by Diver Down is a compulsory counterclaim.

Explanation

A Rule 13 compulsory counterclaim arises out of the same transaction as the plaintiff’s original claim. A defendant who fails to allege the compulsory counterclaims will lose it - - courts will preclude him alleging it in a subsequent case.
(B) is not the best answer. Compulsory counterclaims do not need to meet the amount in controversy requirement.
(C) is wrong because subject matter jurisdiction based on diversity is not the issue. If the original action were based on state law tort claims and the court had subject matter jurisdiction the parties in this action are presumably diverse. The question is whether Diver Down is required to sue Peck for defamation in the same action.
(D) is a distractor. A compulsory counterclaim is not a type of permissive joinder.

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10.

According to the Rules Enabling Act, the Supreme Court may create federal procedural rules provided the rules
- Do not favor federal law over state law.
- Do not abridge, enlarge, or modify any substantive right.
- Do not favor common law over statutory law.
- Enforce federal substantive law.
Correct Answer

A. Do not abridge, enlarge, or modify any substantive right.

Explanation

(B) correctly states the limitation on the Supreme Court’s power to create procedural rules.
(A) is wrong because the issue is not whether the Rule is favoring federal or state law. The Supremacy Clause tells us that federal law will trump state law but that is not relevant to the question. (C) is similarly wrong because the issue is not favoring common law or statutory law. (D) is wrong because federal courts do not "enforce" the law, however, they often apply federal or state substantive law depending on the case.

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11.

In a diversity case in federal court, Peggy sues Dirk for negligence. The state statute of limitations is four years, running from the time of the injury. Pegg's injury was January 1, 2010. She filed the complaint in December 2013 but did not serve the complaint until early January 2014. Under state rules, Peggy sued Dirk a few weeks after the limitations period expired. By federal rules she would have sued in time based on the date the complaint was filed. Should a federal court dismiss the case for falling outside the limitations period?
- No. Federal courts should not follow state law because the justice system must preserve the distinction between federal and state courts.
- Yes, provided the federal court determines that the state law is substantive and does not conflict with the Federal Rules.
- No, following the state statute of limitations would affect the outcome of the case.
- Yes, federal courts should follow state procedural rules unless there is a compelling purpose to follow federal procedural rules.
Correct Answer

A. Yes, provided the federal court determines that the state law is substantive and does not conflict with the Federal Rules.

Explanation

The Erie doctrine provides that federal courts sitting in diversity apply federal procedural rules and state substantive law. Federal courts treat statutes of limitation as substantive, therefore, the court will apply the state law.

For this question, we can quickly eliminate the wrong answers:
(A) falsely states that federal courts should not apply state law. That is incorrect. Federal courts apply state substantive law provided it does not conflict with a federal rule.
(B) is false because when federal courts apply state substantive law, it will always affect the outcome of the case. In analyzing whether federal courts should apply state law, one factor that a court should consider is whether failing to apply state law would encourage forum shopping. Here, if the federal court refused to apply state substantive law it would encourage litigants to choose federal court and avoid state court.
(D) is wrong because federal courts should apply federal procedural rules, not state procedural rules.

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12.

Following an accident between a train and her car, Penelope sues the Deadwood Railroad Company. In its verdict, a jury determines that Penelope was contributorily negligent and a cause of her own juries. Penelope is barred from recovering because of her contributory negligence. Percival, a passenger in Penelope's car later sues Deadwood for negligence. What is Deadwood’s best argument that Penelope bears responsibility for any injuries to Percival?
- The decision in the first case establishes negligence per se.
- The jury's determination in the first case that Penelope was negligent was actually litigated and necessary for the judgment.
- The jury’s determination that Penelope was negligent is the law of the case.
- Stare decisis bars Penelope or Percival from denying Penelope’s negligence.
Correct Answer

A. The jury's determination in the first case that Penelope was negligent was actually litigated and necessary for the judgment.

Explanation

Issue preclusion or collateral estoppel prohibits re-litigating an identical issue that was decided in a prior case. The doctrine applies where an issue in both proceedings is identical, the relevant issue was actually litigated and decided in the prior proceeding, there was a full and fair opportunity to litigate the issue in the prior proceeding, and the issue was necessary to support a valid and final judgment on the merits. (B) is the best answer because Penelope was a party to the prior action and the decision regarding contributory negligence was necessary to the final judgment.
(A) is wrong because parties may try to establish negligence per se based on violation of a law. The principle is inapplicable to this question.
(C) is wrong because law of the case doctrine only applies to decisions within the same case. Both District Courts and Circuit Courts will follow their prior decisions unless there is new law or new facts that were not considered in a prior decision. A Circuit Court’s appellate decision will bind subsequent decisions by the trial court in the same case. The doctrine does not apply to a decision by a different court.
(D) Stare decisis is inapplicable because that principle provides that a court should apply the legal reasoning from an earlier case to a subsequent case with different parties.

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13.

Pegasus software sued Dragon computers in federal court for breach of contract, fraud, and libel. Dragon counterclaimed for breach of contract. After discovery, Dragon moved to dismiss Pegasus's claims and moved for summary judgment on its breach of contract claims. The Court dismissed Pegasus's breach of contract claims but denied the motion to dismiss the fraud and libel claims. The Court granted Dragon's motion for summary judgment. Under what condition would the district court's decision to grant Dragon's motion for summary judgment be considered a final judgment?
- Under no condition because Pegasus's claims for fraud and libel are still pending a final decision.
- If the district court granted the motion for summary judgment without prejudice.
- If pursuant to 28 USC §1292 Pegasus files a motion with the district court seeking certification to file an interlocutory appeal.
- If the district court, pursuant to Rule 54(b), certifies its decision to grant summary judgment on Dragon's contract claims as a final judgment.
Correct Answer

A. If the district court, pursuant to Rule 54(b), certifies its decision to grant summary judgment on Dragon's contract claims as a final judgment.

Explanation

Rule 54(b) provides that in a case with multiple parties or multiple claims, a district court can certify as final a decision that disposes of at least some, but not all, of the claims, if there is no just reason to delay. Normally the decision disposing of only some of the claims would not be a final judgment for purposes of 28 USC § 1291. Rule 54 allows a party to move to certify the judgment as final. (D) is the best answer because it correctly explains how Rule 54 allows the district court to transform a judgment into a final judgment.
(A) is wrong because although there are still pending causes of action, the court may certify its decision as final pursuant to Rule 54.
(B) is a distractor. When a court denies a motion for summary judgment without prejudice, the moving party may file the motion again. The answer has no connection to this question.
(C) is wrong because 28 USC § 1292 is the mechanism for certifying an interlocutory order as appealable. Under §1292, the District Court certifies that an order which is not final would be appropriate for review by the Circuit Court without waiting until entry of final judgment. But 28 USC § 1292 does not change what would normally be a non-final order into a final order.

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14.

After attending a small lecture given by an attorney at the local library, Barry asks the attorney a few questions about the legal ramifications of some of his business decisions. If a court determines that the communication between the attorney and Barry are not privileged and subject to disclosure under Rule 26, which of the following would be the most likely reason?
- The attorney responded to Barry's questions in the presence of several other people who had also attended the lecture.
- The attorney began his lecture earlier that day by expressly stating that he was not acting as anyone's attorney.
- Barry did not reasonably anticipate litigation at the time that he asked the questions.
- The attorney clearly had not engaged in any legal research before responding to Barry's questions.
Correct Answer

A. The attorney responded to Barry's questions in the presence of several other people who had also attended the lecture.

Explanation

This question requires you to recognize the nature of an attorney-client communication. Attorney-client communications, among other things, must be confidential and for the purpose of providing legal advice. If this communication were in the presence of other attendees that would eliminate any purported privilege.
(B) is wrong because the disclaimer would probably not be effective if the attorney proceeded to give legal advice.
(C) conflates the attorney-client privilege and the work product doctrine by incorrectly suggesting that an attorney must make a communication in the anticipation of litigation for the privilege to apply. Although it is true that attorney work product created for the purpose of litigation will be privileged, an attorney-client communication will be privileged regardless of whether the communication is in connection with an anticipated litigation.

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15.

Phil sues Dudley in federal court for breach of contract after Dudley fails to deliver jewelry valued at $100,000. Phil is a citizen of New York and Dudley is a citizen of New Jersey. Indigo seeks leave to intervene in the action as of right, as a third party plaintiff. She seeks intervention on grounds that, among other things, Phil will not adequately represent her rights. Her lawsuit and the original lawsuit concern the same jewelry. Assume Indigo is a citizen of New York and she alleges $100,000 in damages. Would the federal court have jurisdiction over Indigo's claim?
- No, the federal court cannot assert jurisdiction because Indigo is seeking to intervene as a plaintiff and she may only intervene as a defendant.
- No, the federal court cannot assert jurisdiction because Indigo is seeking to intervene as a plaintiff and she and Phil are citizens of the same state.
- Yes, the federal court may assert jurisdiction because Indigo is intervening as of right and the court lacks discretion to decline jurisdiction.
- Yes, the federal court may assert jurisdiction because Indigo is diverse from Dudley and she meets the amount in controversy requirement.
Correct Answer

A. Yes, the federal court may assert jurisdiction because Indigo is diverse from Dudley and she meets the amount in controversy requirement.

Explanation

The only correct answer is (D) because Indigo is seeking to intervene as a plaintiff pursuant to Rule 24 in a case where the basis for original jurisdiction is diversity. Pursuant to 28 USC §1332, the federal court can only assert jurisdiction over her claim if she is diverse from the defendant in the action and meets the amount in controversy requirement. The Court cannot assert supplemental jurisdiction over her as a plaintiff. Indigo is, in fact, diverse from the defendant and the amount in controversy exceeds $75,000, therefore, the court may assert subject matter jurisdiction.
(A) is wrong because Indigo may intervene as a plaintiff. Intervenors do not have to intervene as defendants.
(B) is wrong because the plaintiffs do not have to be diverse from each other.
(C) is wrong because federal courts cannot assert subject matter jurisdiction without a statutory basis.

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16.

Darren, while test driving a motorboat manufactured by Turtle Boats, crashes into Patricia, injuring both Patricia and himself. Darren is a citizen of Delaware and Patricia is a citizen of New Jersey. Patricia sues Darren for $80,000 in federal court. Can Darren implead Turtle Boats, incorporated and headquartered in Delaware, as a third party defendant on grounds that Turtle Boats is liable to him if he is liable to Patricia?
- No. Although the amount in controversy is greater than $75,000, Darren and Turtle Boats are not diverse.
- No. Although the amount in controversy is satisfied. Patricia and Turtle Boats are not diverse.
- Yes, there is no need for diversity between Darren and Turtle Boats because Darren is impleading Turtle Boats.
- Yes, because there is diversity between Patricia and Turtle Boats the Court may assert jurisdiction.
Correct Answer

A. Yes, there is no need for diversity between Darren and Turtle Boats because Darren is impleading Turtle Boats.

Explanation

(C) is the correct answer because Darren is a third party plaintiff under Rule 14, therefore, 28 USC §1332 enables the court to assert supplemental jurisdiction over his claim against Turtle Boats.
(A) is wrong because although Darren and Turtle Boats are not diverse the court should have supplemental jurisdiction because the claim arises from the same case and controversy as the original litigation.
(B) and (D) are wrong because for purposes of Rule 14, diversity between the original plaintiff and the third party defendant is not relevant.

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17.

After Derrick failed to deliver goods per their contract, Percy sued him, alleging, among other things, that Derrick fraudulently induced him to enter into the contract. According to Percy, Derrick never intended to deliver the goods, If Derrick moves to dismiss this cause of action, which of the following is correct?
- The complaint should not be dismissed unless under no circumstance could Derrick prove a fact that would entitle him to relief.
- The complaint should not be dismissed if the fraud allegations create a material issue of fact as to whether Derrick is liable.
- The complaint should be dismissed if the complaint fails to allege the circumstances of the fraud with particularity.
- The complaint should be dismissed if the complaint fails to allege specific facts creating an inference of fraud that is stronger than non-culpable inferences.
Correct Answer

A. The complaint should be dismissed if the complaint fails to allege the circumstances of the fraud with particularity.

Explanation

(C) is the best answer because Rule 9 requires the Complaint to plead special allegations, including fraud, with particularity.
(A) is wrong because it enunciates the wrong standard on a motion to dismiss. Previously courts would not dismiss a case unless the plaintiff “could prove no fact” that would entitle him to relief. However, pursuant to Iqbal and Twombly, Courts apply a more stringent standard requiring complaints to plead facts plausibly showing the plaintiff is entitled to relief.
(B) is wrong because it states the standard to determine whether or not to grant summary judgment pursuant to Rule 56.
(D) is wrong because Rule 9 does not impose a stringent requirement that the inference of fraud must be stronger than non-culpable inferences. This is a requirement to plead a securities fraud complaint pursuant to the Private Securities Litigation Reform Act.

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18.

Paleo Productions alleges that Delta Designs breached a contract to create computer generated images for a dinosaur movie. Delta serves its Answer on May 2, 2016. On May 16, 2016 Delta recognizes that it admitted Paleo's allegation that Delta and Paleo formed a contract. Delta would like to revise its Answer to deny that allegation. For two weeks Paleo's attorneys refined their litigation strategy based on the assumption that neither party disputed that the parties entered into a contract. May Delta amend its Answer?
- No, because Paleo will be prejudiced.
- Yes, because Paleo will not be prejudiced.
- No, because the Answer substantially alters the legal theories of the case.
- Yes, because Delta is allowed to amend its Answer as of right.
Correct Answer

A. Yes, because Delta is allowed to amend its Answer as of right.

Explanation

(D) is the best answer because Rule 15 provides that within 21 days after serving its Answer Defendant may amend its Answer.
(A) is a good answer because Rule 15 encourages courts freely to allow parties to amend their pleadings where there is no prejudice to the other party. Causing Paleo to review its strategy after two weeks would not constitute prejudice. If this were outside Rule 15’s period to amend as of right (A) would be the best answer. But as this falls within 21 days of serving its Answer (A) is not the best choice.
(B) is not the best answer because Delta is allowed to amend its pleadings as of right regardless of purported prejudice. In any event, at this early stage of litigation prejudice would be unlikely.
(C) is wrong because amended pleadings may include changes in legal theories.

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19.

Punky and Dribbles get in a car accident. Punky sues Dribbles in federal court based on diversity. She alleges $30,000 in damages. In addition, she also alleges that Dribbles breached a contract to model her home. She asks for $50,000 under her contract claim. Does the federal court have diversity jurisdiction?
- No, because the claims do not arise from the same nucleus of operative facts.
- No, because Punky may not aggregate her claims to meet the amount in controversy.
- Yes, because Punky is alleging claims against a single defendant.
- Yes, because the federal court has supplemental jurisdiction over the contract claim.
Correct Answer

A. Yes, because Punky is alleging claims against a single defendant.

Explanation

To meet the amount in controversy requirement a plaintiff alleging claims against a single defendant may aggregate her claims. For that reason Punky’s combined claims meet the threshold for the amount in controversy.
(A) is incorrect because for a single plaintiff the claims do not need to arise from the same facts. If multiple plaintiffs allege claims against the same defendant usually there is no aggregation unless they are alleging claims based on a single undivided interest (e.g. tenants in common).
(B) and (D) are wrong because aggregation is permitted in this case. A single plaintiff against a single defendant may aggregate his claims and supplemental jurisdiction is not required.

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20.

Following a car accident in the Northern District of New York Patty sued Dudley for negligence. Dudley is an individual and a citizen of New Jersey. Patty is a citizen of New York. Patty sues Dudley in the Southern District of New York (where she lives). Dudley moves to dismiss the case or in the alternative to transfer the case. If the court does not dismiss the case what should the court do?
- The court should not transfer the case because venue in the Southern District of New York is appropriate.
- The court should transfer the case to a state court in New York or New Jersey.
- The court should transfer the case to a federal district court - - either the Northern District of New York or to the District of New Jersey.
- The court should transfer the case to a state court in New York.
Correct Answer

A. The court should transfer the case to a federal district court - - either the Northern District of New York or to the District of New Jersey.

Explanation

Venue is appropriate in a judicial district in which a substantial number of underlying events occurred or where the defendant resides. (C) is the only answer that identifies where venue is appropriate. The federal court correctly found that SDNY was inappropriate venue and if it chooses to not dismiss the case the court should transfer the case pursuant to 28 USC §1406.
(A) is wrong because SDNY is inappropriate venue. (B) and (D) are wrong because the federal court cannot transfer the case to a state court.

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Uslawessentials Civ Pro Essentials 2

Quiz Preview

Following a car accident, Penelope sue Dennis in California for $135,000. The jury awards her $60,000. Penelope then sues Dennis for $76,000 in New York based on the same accident. If the New York federal court dismisses the claim it will most likely be because

Lead plaintiff alleges that a large retail store engaged in age discrimination and brings a Rule 23(b)(3) class action. Which of the following is most accurate regarding requirements to certify the class?

A New Jersey state employee allegedly violated Pat's Constitutional rights. Pat, a citizen of New Jersey, sues pursuant to 42 USC §1983. May she sue the employee and the state in federal court?

Plaintiff sues Daredevil Delivery company following an accident in which a Daredevil employee collided with him in an intersection. Which of the following is most accurate regarding Daredevil's initial mandatory disclosures if its decision to hire the employee is relevant to a defense in this case?

According to the Rules Enabling Act, the Supreme Court may create federal procedural rules provided the rules