WARNING!
This answer key does
NOT take into account subsequent changes
in the law. Some of what is said here may no longer be correct.
MICHAEL
STEVEN GREEN
CIVIL
PROCEDURE
Law
102
Section
3
FALL
2006
This examination
consists of 18
pages, including this cover sheet.
TIME: You have Four Hours for this exam. I have
indicated
how much time should be devoted to each question in order to pace
properly. Try
your best to finish the exam.
SCORING: The total number of points for the exam is 200.
Part I consists of 16 multiple-choice questions, each of which is worth
5
points. The total number of points for Part I is 80. Use the
scantron card
for the multiple choice questions.
Part II consists of 5 essay questions. The total number of points for
Part II
is 120. Write the essays in bluebooks or type your answers.
WHAT YOU MAY USE IN THE EXAM:
Commercial outlines, hornbooks, treatises etc. are not permitted
in the
examination. You may have with you in the examination only the
following:
1) All materials assigned in this course:
Field, Kaplan & Clermont,
Civil Procedure
(8th ed.)
Glannon, Civil Procedure:
Examples and Explanations
(5th ed.)
Federal Rules of Civil Procedure
(West) (or any other version of the Federal Rules and statutory
materials used
in the course, provided it contains only material available
from the
West book)
Material on the website for the course.
2) Any outline made by you or by a study group within which you
participated.
3) Your class notes.
Use of the Web is prohibited.
NOTES:
Should you feel ill or panicky in anyway, please immediately see Dean
Jackson
in room 107
The entire examination must be returned.
16 Multiple Choice
Questions
(5 points – 6
minutes – each)
(80 points – 96
minutes – total)
Answers must be
put on the scantron cards!
1. P files a complaint against the D Corp. and its
President,
X, in the
a.
The D Corp.’s
motion should succeed, but not X’s.
Wrong.
See answer c. (7 of you chose this answer.)
b.
X’s motion
should succeed, but not the D Corp.’s
Wrong.
See answer c. (2 of you chose this answer.)
c.
Neither the D
Corp.’s nor X’s motion should succeed.
Correct.
Service on X is correct, because FRCP 4(e) is satisfied. According to
4(e)(2),
“service upon an individual … may be effected in any judicial district
of the
d.
One cannot
know whether the D Corp.’s or X’s motion should succeed without knowing
Wrong. It is true that under FRCP 4(e)(1),
service on
individuals may be effected “pursuant to the law of the state
in which
the district court is located, or in which service is effected.” So if
e.
One cannot know whether the D Corp.’s or X’s motion should succeed
without
knowing
Wrong. See d for why. (11 of you chose
this.)
2 P, a
citizen
of Ohio, files a complaint in the Federal District Court for the
Eastern
District of Michigan against General Motors (a citizen of Michigan and
Delaware) and Ford (a citizen of Michigan and Delaware) on behalf of a
class of
100 million American urban dwellers, alleging that the defendants
violated the
Sherman Antitrust Act (a federal statute) and Michigan state antitrust
law by
conspiring to restrain the development of automobile air pollution
mechanisms,
thereby polluting the atmosphere of North America and causing the
plaintiff
class damages of $100 billion dollars (i.e. $1000 for each member of
the
plaintiff class). The defendants are properly served. Which of the
following is
most accurate?
a.
The
Wrong.
Aggregation is irrelevant, because meeting the jurisdictional minimum
for
diversity is unnecessary. The
b.
Both the
federal and the state antitrust actions should be dismissed for lack of
federal
subject matter jurisdiction, since aggregation of plaintiffs’ claims is
not
allowed to meet the jurisdictional minimum. (Ignore the
recently-enacted
jurisdictional provisions of the Class Action Fairness Act for this
answer.)
Wrong.
Aggregation is irrelevant, because meeting the jurisdictional
minimum for
diversity is unnecessary. The
c.
If P has
offered no evidentiary support of his factual allegations of an
antitrust
conspiracy, his complaint should be dismissed for failure to state a
claim.
Wrong.
This is gibberish. Dismissal for failure to state a claim is justified
when the
plaintiff’s allegations fail to assert any violation of the law.
Evidentiary
support is irrelevant. (4 of you chose this.)
d.
P’s complaint
should be dismissed for failure to satisfy the pleading requirements in
Rule
9(b).
Wrong.
Rule 9(b) applies to allegations of fraud and mistake. No allegations
of fraud
or mistake have been made.
e. P’s Sherman Act action should
be
dismissed for failure to state a claim, since conspiracy to restrain
the
development of automobile air pollution mechanisms is not restraint of
trade of
the sort encompassed by the Sherman Act.
Correct. This is the best answer. If indeed the
3. P, a citizen
of New
York, files a complaint against D, a police officer and citizen of New
Jersey,
in the federal District Court for the District of New Jersey. P alleges
that
she is entitled to damages under 28 U.S.C. § 1983, because D
violated her
Fourth Amendment rights by searching her apartment without a warrant
when
consent was provided by her roommate. Although P’s lawyer, X, signed
P’s
complaint, the Fourth Amendment argument was P’s idea.
D has a process server serve a motion for Rule 11 sanctions in hand on
P’s
lawyer. 25 days later D files the motion with the court. D argues that
P’s
claim of a Fourth Amendment violation is a frivolous legal contention
in
violation of Fed. R. Civ. P. 11(b)(2). Assume that the Supreme Court
decided,
in U.S. v.
Matlock, 415 U.S. 164 (1974),
that searches of the sort undertaken
by D are legal under the Fourth Amendment. Assume further that no
subsequent
Supreme Court case has cast doubt upon the Matlock decision.
Which of
the following is most accurate?
a.
X, but not P,
may be sanctioned monetarily under Rule 11.
Wrong,
because we have as yet no reason to believe that Rule 11 was violated.
(See c.)
Still, this answer is partially right, because if it is true that Rule
11(b)(2)
was violated (because there was no nonfrivolous argument that the
Supreme Court
should reverse Matlock), then it would be the case that P could
not be
sanctioned monetarily. Under Rule 11(c)(2)(A), “[m]onetary sanctions
may not be
awarded against a represented party for a violation of subdivision
(b)(2).” (13
of you chose this.)
I am going to give students who chose this credit. The problem is my
use of the
term “may.” I had to use “may” because, according to Rule 11(c), even
if the
standards in Rule 11(b) have been violated, a court “may … impose an
appropriate sanction.” It is not obligated to sanction anyone. But the
problem
is that one could reasonably think that this “may” meant that sanctions
on X
were possible, if it was determined that Rule 11(b)(2) was
violated.
Another reason to give credit is that this was the only wrong answer on
the
entire exam that increased one’s likelihood of getting other answers
right about
as much as choosing the right answer for this question,
which was c.
b.
Both P and X
may be sanctioned monetarily under Rule 11.
Wrong.
First of all, we have as yet no reason to believe that Rule 11 was
violated.
See c. Second, if 11(b)(2) was violated, only X could be sanctioned
monetarily.
See a. (7 of you chose this.)
c.
The fact that
the Matlock decision is directly contrary to P’s claim of a
Fourth
Amendment violation does not, on its own, mean that P has made a
frivolous
legal contention under Fed. R. Civ. P. 11(b)(2).
Correct.
Under Rule 11(b)(2), Rule 11 sanctions are appropriate in connection
with legal
contentions only if they are not “warranted by existing law or by a
nonfrivolous argument for the extension, modification, or reversal of
existing
law or the establishment of new law.” P may simply have been arguing
(nonfrivolously)
that the Supreme Court should reverse Matlock. (47 of you chose
this.)
d.
D’s motion is
invalid. D must first file the motion with the court and then
serve P.
Wrong.
Service on P must precede filing with the court by 21 days. Under Rule
11(c)(1)(A), a motion for Rule 11 sanctions “shall be served as
provided in
Rule 5, but shall not be filed with or presented to the court unless,
within 21
days after service of the motion (or such other period as the court may
prescribe), the challenged paper, claim, defense, contention,
allegation, or
denial is not withdrawn or appropriately corrected.” (2 of you chose
this.)
e.
D’s motion is
invalid. A motion for Rule 11 sanctions cannot be served on P’s lawyer.
Wrong. Rule 5, not 4, applies to motions,
including
motions for Rule 11 sanctions. And, as we discussed in class (and was
stated in
the readings), Rule 5 allows for service on a party’s lawyer. (Only 1
of you
chose this.)
4. P sues D
under
federal antitrust law in the
a.
The suit will
be remanded. Under Semtek International
Inc. v.
Lockheed Martin Corp., the
preclusive
effect of the earlier federal judgment is governed by
Wrong.
The suit will indeed be remanded, but not for the reason stated here.
First of
all, the earlier federal judgment was for a federal question suit, not
a
diversity suit, so
This is also wrong because P is claim precluded. Default judgments in
fact do
have claim preclusive effect under the federal law of claim preclusion
(and
probably under
b.
The suit will
be remanded. Under Semtek International
Inc. v.
Lockheed Martin Corp., the
preclusive
effect of the earlier federal judgment is governed by
Wrong.
The suit will indeed be remanded, but not for the reason stated here.
See
answer a above. This is also wrong because there was federal
subject
matter jurisdiction for the state antitrust actions. They would have
had
supplemental jurisdiction in the first suit. So there is no reason to
think
that P is not claim precluded. (4 of you chose this.)
c.
Although the preclusive effect of the
earlier federal judgment is
governed by federal, not
Correct.
First of all, this is right in saying that federal claim preclusion law
will
apply. See answer a above. Second, it is right that the case
should still
be remanded. See answer a above. And finally, it is right that
P should
be claim precluded, since the state antitrust actions concerned the
same
transaction as the earlier federal antirust actions. (37 of you chose
this.)
d.
Although the preclusive effect of the
earlier federal judgment is
governed by federal, not
Wrong. First of all, this is right in saying
that federal
claim preclusion law will apply. See answer a above. Second,
it is right
that the case should still be remanded. See answer a above.
But it is
wrong in saying that P is not claim precluded. Default judgments have
claim
preclusive effect. (They do not, however, have issue preclusive
effect.) (20 of
you chose this.)
e. Although the preclusive effect of the earlier federal
judgment is
governed by federal, not
Wrong. First of all, this is right in saying that federal claim
preclusion law
will apply. See answer a above. Second, it is right that the
case should
still be remanded. See answer a above. But it is wrong in
saying that P
is not claim precluded. There would have been supplemental jurisdiction
for the
state antitrust actions in the earlier federal suit. (2 of you chose
this.)
5. P sues D in federal court for
damages
in a brawl in which P, D and X participated. Which of the following is most
likely allowed under the joinder rules in the Federal Rules
of Civil
Procedure? (Do not consider personal jurisdiction, venue or subject
matter
jurisdiction in answering this question.)
a.
D joins an
action against X for the damages D sustained from X in the brawl.
Wrong.
D can join X (under Rule 14) only if X “is or may be liable to [D] for
all or
part of [P’s] claim against [D].” Here D is asking for his own
damages
from X. (10 of you chose this.)
b.
D seeks to
have X joined as a necessary party.
Wrong.
There is no reason to believe that any of the criteria in Rule 19(a)
apply to X
simply because he also took part in the brawl. (14 of you chose this.)
c.
D joins an
action against Z for breach of an unrelated contract.
Wrong.
Obviously not allowed under the joinder rules. (No one chose this.)
d.
P joins an
action against Z for breach of an unrelated contract.
Wrong. Obviously not allowed under the joinder
rules. (No
one chose this.)
e. P joins an
action
against D for breach of an unrelated contract.
a.
There is
federal subject matter jurisdiction for both P’s action against D and
D’s
action against I.
Correct.
P’s suit against D is an adequate diversity suit under 28 USC 1332. And
D’s
impleader has supplemental jurisdiction under 28 USC 1367. (66 of you
chose
this – it was too easy a question.)
b.
D’s action
against I should be dismissed for lack of federal subject matter
jurisdiction.
P’s action against D has federal subject matter jurisdiction and can
remain in
federal court.
Wrong.
D’s impleader has supplemental jurisdiction under 28 USC 1367. (2 of
you chose
this.)
c.
D’s action
against I should be dismissed for lack of federal subject matter
jurisdiction.
Furthermore, P’s action against D should also be dismissed for lack of
federal
subject matter jurisdiction, since it is “contaminated” by D’s action
against I.
Wrong.
D’s impleader has supplemental jurisdiction under 28 USC 1367.
Furthermore,
even if it didn’t, it would not contaminate P’s action against D. The
contamination theory applies only to actions between plaintiffs’
actions
against defendants. (2 of you chose this.)
d.
P’s action against
D should be dismissed for lack of federal subject matter jurisdiction
because P
is an in-state plaintiff. Once P’s action is dismissed, D’s action
against I
will also have to be dismissed for lack of federal subject matter
jurisdiction.
Wrong.
It is true that in-state defendants can’t remove under
diversity
(see 28 USC 1441), but the same requirement does not apply to in-state plaintiffs
suing under diversity (although arguably it should). So this is wrong.
But it
is right in saying that if P’s suit against D did not have diversity
jurisdiction, then D’s action against I would have to be dismissed,
since it
would no longer have supplemental jurisdiction. (None of you chose
this.)
e.
P’s action
against D should be dismissed for lack of federal subject matter
jurisdiction
because P is an in-state plaintiff. Once P’s suit is dismissed, the
court may
at its discretion choose to retain or dismiss D’s action against I.
Wrong.
First of all, in-state plaintiffs can sue under diversity (see d above).
Second, if it were true that P’s suit against D did not have diversity
jurisdiction, then D’s action against I would have to be
dismissed,
since it would no longer have supplemental jurisdiction. (None of you
chose
this.)
7.
P, a German citizen admitted for residency in the
a.
Although
according to 28 USC § 1332 there is federal subject matter
jurisdiction for P’s
action against D, it is nevertheless contrary to Article III of the
United
States Constitution for the federal court to entertain the suit.
Correct. This is the best answer. First of all, according to 28
USC
1332(a), “an alien admitted to the
The judicial Power shall extend … to
Controversies … between a State
and Citizens of another State;--between Citizens of different
States,--between
Citizens of the same State claiming Lands under Grants of different
States, and
between a State, or the Citizens thereof, and foreign States, Citizens
or
Subjects.
Notice that the Constitution does
not allow for
federal jurisdiction for controversies between citizens or subjects of
foreign
states alone. And that looks like what P’s suit against D is. A German
is suing
a German, even if 1332 treats one of the Germans as a New Jerseyan. So
it is
arguable that allowing P’s suit against D into federal court is
contrary to the
Constitution. A recent court has suggested as much. Gall
v. Topcall Int'l, A.G., 2005 WL
664502
(E.D. Pa. 2005). (38 of you chose this answer.)
b.
There is no
federal subject matter jurisdiction under 28 USC § 1332 for P’s
action against
D because both the plaintiff and the defendant are citizens of the same
country.
Wrong.
There is no language in 1332 allowing for suits into federal court if
the
plaintiff and defendant are from different countries. Suits between
aliens
(whether of different countries or the same country) are not allowed
under
1332. (2 of you chose this)
c.
There is
personal jurisdiction over D under Fed. R. Civ. P. 4(k)(2).
Wrong.
4(k)(2) does not apply. First of all, this is not a claim “arising
under
federal law,” as 4(k)(2) requires. Second, it is not clear that this is
a case
where exercise of PJ “is consistent with the Constitution and laws of
the
d.
There is no
federal subject matter jurisdiction under 28 USC § 1332 for P’s
action against
D because the action is under German law.
Wrong. Diversity (or alienage) cases under 1332
need not
be brought just under state law. They can also be brought under foreign
law. I
said this many times in class. (3 of you chose this.)
e.
There is no venue for P’s action against D in the District of New
Jersey.
8. P, a
a.
P may not join
an action against X, because P is already demanding that D pay all the
damages
caused by D and X as joint tortfeasors.
Wrong.
It is true that, in the end, P cannot get double recovery. P cannot get
the
totality of the damages caused by D and X first from D and then from X.
But
that does not mean that P cannot join the two together in a suit and
assert his
right to the totality of damages from each. Under FRCP 20(a) two
parties that
are joint and severally liable may both be joined together. I never
suggested
anything contrary in class. (13 of you chose this.)
By the way, you should have known that this answer was wrong. The next
four
answers (b-e) exhaust the possibilities concerning subject matter
jurisdiction
for the two actions, so one of these four has to be right.
b.
D’s action
against X and P’s action against X should be dismissed
for lack
of federal subject matter jurisdiction.
Wrong.
D’s action against X clearly has supplemental jurisdiction. It is part
of the
same constitutional case or controversy as P’s diversity action against
D, and
furthermore it does not fall under any of the exceptions to
supplemental
jurisdiction spelled out in 28 USC 1367(b).
On the other hand, this answer is right in saying
that P’s
action against D should be dismissed for lack of federal subject matter
jurisdiction. Although it is part of the same constitutional case or
controversy as P’s action against D, it falls under one of the
exceptions to
supplemental jurisdiction spelled out in 28 USC 1367(b). It is a claim
by a
plaintiff against a person made a party under Rule 14, and exercising
supplemental jurisdiction would be inconsistent with the jurisdictional
requirements
of section 1332 (because the jurisdictional minimum is not satisfied).
(2 of
you chose this.)
c.
Neither
D’s action against X nor P’s action against X should be
dismissed
for lack of federal subject matter jurisdiction.
Wrong.
P’s action against X should be dismissed. See b above. (11 of you chose
this.)
d.
D’s action
against X should be dismissed for lack of federal subject
matter, but
P’s action against X should not be dismissed for lack of
federal subject
matter jurisdiction.
Doubly wrong. D’s action against X should not
be
dismissed and P’s action against X should be dismissed. See b above. (2
of you
chose this.)
e. D’s action
against X
should not be dismissed for lack of federal subject matter, but
P’s
action against X should be dismissed for lack of federal
subject matter
jurisdiction.
Correct. See b above. (42 of you chose this.)
9. P (a citizen
of
a.
D’s statute of
limitations defense should fail. D waived this defense putting a
permissive
counterclaim in his answer.
Wrong.
We talked about waiver of statutes of limitations in connection with
counterclaims, but that concerned situations where P sued D within the
statute
of limitations, and D asserted a compulsory counterclaim outside the
statute of
limitations. We concluded that the plaintiff waived the right to
challenge the
compulsory counterclaim on statute of limitations grounds when he made
the
choice to sue the defendant. There was never a suggestion that the
defendant
waived the right to assert the defense of statute of limitations
against the
plaintiff simply by asserting a compulsory counterclaim (much less a
permissive
one) against the plaintiff. And I can’t think of an argument why that
would be
a reasonable rule. (3 of you chose this.)
b.
The district
court was correct to deny D’s motion to dismiss for inadequate service.
Because
P’s action is under diversity, state service rules apply.
Wrong.
There is a FRCP that governs service, namely Rule 4. Hanna makes it
clear that
this federal rule applies even in a diversity case. (9 of you chose
this.)
c.
The district
court was wrong to deny D’s motion to dismiss for inadequate service.
According
to Fed. R. Civ. P. 4(c)(2), “service may be effected by any person who
is not a
party and who is at least 18 years of age.”
This
is the best answer, although this is a matter of some dispute. The
question is
whether 4(c)(2) determines who may serve for all cases in federal court
or
whether state law standards on who may serve are relevant for a
plaintiff
relying upon FRCP 4(e)(1), which states that service on individuals may
be
effected “pursuant to the law of the state in which the district court
is
located, or in which service is effected.” Although this is a matter of
debate,
this is the best answer, since all the others are clearly wrong. (39 of
you
chose this.)
d.
D’s statute of
limitations defense should fail because it was waived by not being
joined with
P’s motion to dismiss for inadequate service.
Wrong. Statute of limitations is not one of the
waivable
defenses mentioned in FRCP 12(g)-(h). (7 of you chose this.)
e. D’s statute
of
limitations defense should fail because, under federal law, a statute
of
limitations is tolled on filing, not service.
Wrong. Federal tolling law does not apply here. The tolling law that
should be
used is the law of the state where the federal court is located (that
is,
10. P (a
citizen of
a.
A videotape
that D made of P working out vigorously at a gym several days after D
was
served with P’s complaint is not covered by the work product
privilege,
because the contents of the tape are facts.
Wrong.
The tape is a tangible thing and was surely prepared by D “in
anticipation of
litigation or for trial.” So it is work product under FRCP 26(b)(3). It
is true
that facts are not themselves protected by the work product privilege
even if
the facts are themselves expressed in work product. But that simply
means that
D could be required to testify truthfully about what he believes the
level of
P’s injuries even though he would be expressing what he learned through
making
the tape. A document and tangible thing does not cease to be work
product
simply because its contents consist of facts. (6 of you chose this.)
b.
D’s
recollections of what he heard a number of witnesses say to the police
at the
scene of the accident is not discoverable because it is inadmissible
hearsay.
Wrong.
Inadmissible evidence is discoverable provided that it is reasonably
calculated
to lead to admissible evidence. FRCP 26(b)(1). (4 of you chose this.)
c.
D’s
recollections of what he heard a number of witnesses say to the police
at the
scene of the accident is protected by the work product privilege.
Wrong.
The statements of the witnesses are not work product because they were
not
prepared in anticipation of litigation by or for D or by or for D’s
representative. See FRCP 26(b)(3). (3 of you chose this.)
d.
Interrogatories may not be served on witnesses to the accident.
Correct. Interrogatories may be served only on
parties.
See FRCP 33. (57 of you chose this.)
e. P must be
served
with a subpoena duces tecum before he can be deposed by D.
Wrong. A subpoena duces tecum is used to get documents from a
non-party. (No
one chose this.)
11. Which of the following is most accurate?
a.
Assume that
there is a federal choice-of-law statute that specifies that the law
that
applies to breach of contract actions brought in federal court is the
law of
the place of contracting. P brings a diversity action against D in
federal
court. This statute should not be applied to the action. The
choice of
law rules of the state where the federal court is located control.
Wrong.
Choice of law is surely rationally classifiable as procedural. For
example, a
state court will use its own choice of law rules to determine what
substantive
law applies. The fact that forum choice-of-law rules apply is one
reason to
consider choice of law procedural. So, according to Hanna,
choice of law
is something that Congress could regulate by statute, even in diversity
actions. And remember, it does not matter that choice of law is also
rationally
classifiable as substantive. If it is rationally classifiable as
procedural as
well, then Congress can regulate it.
It is true that currently the choice of law decisions made by a
federal
court sitting in diversity are determined by the law of the state where
the
federal court sits. But that is the result of the federal common law
b.
Assume that
Fed. R. Civ. P. 4X states that the statute of limitations for all
actions in
which the limitations period is not otherwise set by federal statute
should be
2 years. P brings an action under federal law against D in federal
court. Rule
4X should not be applied to the action.
This
is the best answer. The Supreme Court has the power to create Federal
Rules of
Civil Procedure because it was given that power by Congress in the
Rules
Enabling Act. A Rule is invalid (which would mean that it is invalid
totally –
in federal question as well as diversity actions) if it is contrary to
the
restrictions in the Act. According to the Act,
(a) The Supreme Court shall have the power to prescribe
general rules
of practice and procedure and rules of evidence for cases in the
(b) Such rules shall not abridge, enlarge or modify any
substantive
right. . . .
Now
there is not much information out there about what it means to abridge,
enlarge
or modify a substantive right. But it is at least arguable that a Rule
that
sets limitations for when actions can be brought abridges or modifies
substantive rights. (There is, of course, no such Rule currently and
none has
even been suggested.) After all, such a Rule says, after a certain
point, that
the substantive rights cannot be sued upon.
In answering this question, you had to compare this answer to the
others that
are available. The final answer – e – is straightforwardly
wrong. There
is also a reason to choose b over c and d. All
three
answers involve the issue of whether Rule is contrary to the
restrictions in
the Rules Enabling Act. But to choose c or d you had to
conclude
that a Rule that currently exists and is constantly used (Rule 56 or
Rule
13(a)) is in fact invalid. That’s a big step. If you choose b,
you claim
that a Rule that does not currently exist is invalid. What is more, a
Rule that
determines the time limitations for vindicating substantive rights
seems more
intrusive into those substantive rights than Rules concerning summary
judgment
and joinder.
What about answer a? Which is more accurate, that choice of law
is not
rationally classifiable as procedural, or that an FRCP that limits the
time
period for when actions can be brought abridges or modifies substantive
rights?
The second is more accurate because the Rules Enabling Act standard is
the more
restrictive one – the one more easily violated. One reason is that it
simply
sounds more restrictive. But there is another reason to think that the
“not
rationally classifiable as procedural” standard is the less restrictive
one. It
is the constitutional limitation on Congress’s power to regulate
procedure. The
Rules Enabling Act limitation is a further
limitation that Congress
created
when it delegated its constitutional power to regulate procedure to the
Supreme
Court. So logically, it should be more restrictive.
Only 3 of you chose this answer. But those who chose it were more
likely to do
better on the rest of the exam, something that was not true of any of
the other
answers to this question. Indeed, the three people who chose this were
among
the highest scorers on the rest of the multiple choice exam.
c.
Assume that
the
Wrong.
There is a FRCP on point – Rule 56 – which governs summary judgment. We
know
from Hanna that the only way that Rule 56 is not going to
apply, even in
a diversity action, is if it is contrary to the restrictions in the
Rules
Enabling Act. Does Rule 56 abridge, enlarge, or modify a substantive
right?
Perhaps there are arguments that it does. But you have a strong reason
to
believe that it does not, namely the fact that Rule 56 is currently in
use and
has not been struck down on these grounds.
Notice that the question is whether Rule 56 abridges, enlarges or
modifies a substantive
right – that is the right that is being sued on (tort, contract, etc.).
The
question is not whether it abridges, enlarges or modifies procedural
rights
that a state thinks important. So the NY state constitution is
irrelevant. (13
of you chose this.)
d.
Assume that
there is no compulsory counterclaim rule in
Wrong. There is a FRCP on point – Rule 13(a) –
which
governs compulsory counterclaims. We know from Hanna that the
only way
that Rule 13(a) is not going to apply, even in a diversity action, is
if it is
contrary to the restrictions in the Rules Enabling Act. Does Rule 13(a)
abridge, enlarge, or modify a substantive right? Perhaps there are
arguments
that it does. But you have a strong reason to believe that it does not,
namely
the fact that Rule 13(a) is currently in use and has not been struck
down on
these grounds. (1 of you chose this.
e. Assume that
there is
no Fed. R. Civ. P. governing service. But there is a federal common law
rule
according to which service must always be in-hand upon the defendant. P
brings
a diversity action against D in federal court. This rule should not
be
applied to P’s diversity action. The service rules of the state where
the
federal court is located control.
Wrong. Hanna explicitly stated that if there were no FRCP
governing
service and the matter were instead covered by federal common law, this
federal
common law would apply in a diversity case. After all, differences in
service
rules as one moves between state court and federal court is unlikely to
motivate forum shopping. (31 of you chose this.)
12. In which of the following
cases is
personal jurisdiction over the defendant least appropriate?
a.
A federal
civil rights action concerning the defendant’s arrest of the plaintiff
in
Wrong.
A
b.
A
Wrong.
A
Attachment is irrelevant. It is relevant (if at all) only in cases of
in rem
and quasi in rem personal jurisdiction, not general personal
jurisdiction. (3
of you chose this.)
c.
A
Wrong.
The defendant is a citizen of
d.
An action by a
Correct. There would be no PJ in a state court
in
e. An action by
a
Wrong. It is true that PJ in this case is somewhat suspect. This is
a quasi
in rem action. The property that is the source of PJ is the defendant’s
13.
Which of the following is most accurate?
a.
P sues D in
Correct.
This is the best answer. Those who thought that there wasn’t PJ
probably
thought that this case was like Shaffer. It isn’t. Shaffer
involved a quasi-in-rem action, where stock (which was
considered by law
to be in
To be sure, there are still some worries about
whether there
is PJ, because there remains the question of whether the property
really is
located in
Indeed, if there is no PJ in this case there might not be any place
where an in
rem action concerning ownership of the stock could be brought,
particularly if
the claimants on the stock were scattered over different states. The
stock
needs to be somewhere and it is not strange to say it is in the
state of
incorporation.
Finally, although this answer is questionable, it is far better than
all the
other answers, which are clearly wrong. (12 of you chose this. But
those who
did were far more likely to do better on the rest of the questions than
those
who did not.)
b.
P sues D in
diversity in the federal court. Assume P’s suit is a
Wrong.
Rule 9(b) is about specificity in the complaint. It creates a
requirement of
heightened specificity for fraud, but makes an exception to this
requirement
for allegations of condition of mind. But none of this absolves P of
satisfying
Rule 11. Just because you don’t have to be specific concerning your
allegation
of condition of mind does not mean you don’t have to have the evidence
in favor
of that allegation necessary to satisfy Rule 11. Rule 11 could still
have been
violated if the allegation in the complaint that D knowingly lied to P
had no
evidentiary support at the time that the complaint was signed by P's
lawyer
(unless P stated that the allegation was only likely to have
evidentiary
support after further discovery). Satisfying Rule 9(b) does not
mean you
have satisfied Rule 11. (14 of you chose this.)
c.
P sues D in
diversity in federal court in
Wrong.
It is true that, under
d.
P sues D in
diversity in federal court in
Wrong. When D brought his contribution action
against X,
he was obligated under the law of claim preclusion to join all causes
of action
that he had against X that concerned the same transaction (that is, the
brawl).
D did not do that, and now that his impleader has come to a judgment he
is
claim precluded. Notice that this is true whether
e. P sues D in
federal
court. D brings a pre-answer motion to dismiss for insufficiency of
service.
After the motion is filed with the court and served upon P, D requests
leave to
amend the motion to include the defense of lack of personal
jurisdiction. If
the court grants leave to amend, the defense of lack of personal
jurisdiction is
not waived.
Wrong.
You can save a waivable defense only through an amendment “as a matter
of
course.” See FRCP 12(h)(1). But only pleadings (e.g. answers) can be
amended as
a matter of course. See Rule 15. Motions, including pre-answer motions,
cannot.
(23 of you chose this.)
a.
X, another
wholesale purchaser of auto parts, with the same grievance against D,
is a
necessary party.
Wrong.
This is not the least accurate, because X is a necessary party.
X claims
an interest relating to the subject of the action and is so situated
that the
disposition of the action in X’s absence may leave D subject to a
substantial
risk of incurring inconsistent obligations by reason of the claimed
interest.
Assume P loses but X wins. D can’t both have and not have
a
warranty that allows for parts from other manufacturers to be used. It
needs a
consistent warranty. (12 of you chose this.)
b.
X, another
wholesale purchaser of auto parts, with the same grievance against D,
may
intervene of right.
Wrong.
This is not the least accurate, because X may intervene of
right. As we
discussed in class, the requirements for an intervener of right and a
necessary
party overlap considerably. And X is a necessary party (see a).
(6 of
you chose this.)
c.
If P’s action
were brought as part of a class action consisting of all wholesale
purchasers
of auto parts, members of the class would not have the opportunity to
opt out.
Wrong.
This is not the least accurate. If P’s action were brought as part of a
class
action consisting of all wholesale purchasers of auto parts, it would
clearly
be a 23(b)(1)(A) or (b)(1)(B) class action. As we discussed in class,
the
requirements for these class actions and the requirements for necessary
parties
overlap considerably. And the other wholesale purchasers of auto parts
would be
necessary parties. See a. Opting out is not possible in a
23(b)(1)(A) or
(b)(1)(B) class action (as one would expect given that the members of
the class
are all necessary parties). Note that once you saw that X was a
necessary
party, answers a, b, and c could all be
immediately
rejected. (17 of you chose this.)
d.
Assume P’s
suit is tried and there is a judgment for P. Assume further that under
federal
antitrust law damages for the higher prices that resulted from D’s
warranty are
not available. Such damages are, however, available under state
antitrust law.
If P were to subsequently sue D in state court under state antitrust
law, she
would not be claim precluded by the earlier federal judgment.
Correct. This is the least accurate, because it
is
downright false. P would be claim precluded. The fact that damages are
unavailable under federal antitrust law but are available under state
antitrust
law does not mean that P is not claim precluded. If P wanted these
damages, all
he had to do was join a state-law antitrust action to the federal
antitrust
action in his first suit. Indeed, under the law of claim preclusion, P
was obligated
to join the state antitrust action in the first suit because it
concerned the
same transaction as his federal antitrust action. Subject matter
jurisdiction
would not have stood in the way of such joinder. The state antitrust
action
would have had supplemental jurisdiction. (32 of you chose this.
e. D’s insurer,
who has
an obligation to indemnify D for the losses that would result from P’s
suit, is
not a necessary party.
Wrong. This is not the least accurate, because it is correct.
D’s
insurer is not a necessary party. In general those against whom one
brings
impleaders are not necessary parties. They can usually be sued in
separate
suits without the issues identified in FRCP 19(a) arising. (3 of you
chose
this.)
15. P, a
student at the
D moves for summary judgment. He offers as evidence in support of his
motion an
affidavit from a student witness who states that the D was not the
officer who
entered the room and that the officer who did enter was out of uniform,
flashed
no badge, and simply barged into P’s room in a way that took no
advantage of
his authority. P offers in opposition to the College’s motion an
affidavit from
another student witness stating that the officer who barged into the
room in
fact said, “Open up, this is the campus police.” D is granted summary
judgment.
Which of the following is most accurate?
a.
The grant of
summary judgment was in error.
Wrong.
The grant of summary judgment was correct. Given D’s admissions, there
are two
remaining issues in the case: whether D was the officer who broke into
the room
and whether the break-in was under the color of state law. What has P
offered
in opposition to D’s motion for summary judgment? Only a witness in her
favor
concerning the second issue. So P has nothing – zip – in support of D
being the
officer who entered the room. If P herself viewed D and can act as a
witness,
she should have offered her own affidavit. (Her complaint is not itself
evidence.) She didn’t (maybe she did not really see who it was). So no
reasonable jury could find that D was the person. This would be so even
if D
had not offered a witness who stated that D was not the person. Summary
judgment
for D is appropriate. I said in class that there was going to be a
question
like this. (24 of you chose this.)
b.
Assume that,
X, another student who was in the searched room, sues D under 42 U.S.C.
§ 1983,
making the same allegations as P did in her complaint. D may issue
preclude X
from relitigating whether he was the officer who entered the room.
Wrong.
X was not a party in the earlier suit, nor was she in privity with P.
She
cannot be issue precluded. (13 of you chose this.)
c.
If P is
domiciled in
Wrong.
There is no worry about complete diversity. This is a federal question
case. (2
of you chose this.)
d.
If P tried to
bring a subsequent state-law trespass action against D in
Correct.
A state-law trespass action would concern the same transaction (namely
the
break-in), so P would be claim precluded from bringing it subsequently.
(32 of
you chose this.)
e.
If the
Wrong. Once again, in general those against
whom one brings
impleaders are not necessary parties. They can usually be sued in
separate
suits without the issues identified in FRCP 19(a) arising. (8 of you
chose
this.)
16. P (a citizen of
a.
D may
successfully remove the state court suit to federal court in New York
on the
grounds that the suit as it stands satisfies the jurisdictional
requirements in
28 U.S.C. § 1332.
Wrong.
As we discussed in class, courts have
consistently
held that such a case does not fall under 1332. It is not a case of a
suit
between “citizens of different States” under 1332(a)(1), because
there
is a citizen of a State (meaning a
b.
D may not successfully
remove the state court suit to federal court in
Wrong.
The jurisdictional minimum for X’s action against D is met. The amount
in
controversy, not the amount that X bought the claim for, is relevant
for the
jurisdictional minimum. The reason that the case cannot be removed is
because
it is a case of an alien suing a
c.
D may
successfully remove the state court suit to federal court in
Wrong.
First of all, Rose v. Giamatti was not about assignment of
interest to
defeat diversity, it was about joinder of a defendant to defeat
diversity.
Furthermore, in the Rose case, the Reds and Major League
Baseball simply
did not have the capability of providing Rose with the relief he was
requesting. They were not genuine defendants. But here X is a genuine
plaintiff. Indeed, I mentioned in class that this example of assignment
to
defeat diversity would be successful, provided that a sufficient part
of the
claim is assigned to the diversity-destroying plaintiff. (6 of you
chose this.)
d.
If, instead of
removing, D made a motion to dismiss for improper venue to the
Wrong.
1441 is the venue statute for federal courts. It does not apply
to state
courts. (14 of you chose this.)
e.
Assume that
Correct.
Cross-claims are not compulsory under the FRCP and this action between
P and X
is a cross-claim. (33 of you chose this.)
Essay
Question 1. [45 points – 54 minutes]
P
bought a blender at the X appliance store in her hometown of
The
D Corp. is incorporated in
Currently
the D Corp. sells its blenders in
Around
the time of P’s accident, in 2004, the D Corp. was in the middle of a
plan to
expand into food processors. In 2003, it established a plant in
P
decides to sue the D Corp. in the
SMJ
Let’s
begin with Subject Matter Jurisdiction, which was fairly easy. The only
possible source of federal subject matter jurisdiction for this case is
diversity. There is no problem with the jurisdictional minimum, given
the
injuries suffered by P. All we need for federal subject matter
jurisdiction,
therefore, is that P’s state of citizenship is different from the
states of
citizenship of the D Corp. (hereinafter D).
What
is P’s state of citizenship –
This
is obviously a fact-intensive question and we don’t have all the
information
that might be relevant to a court making this determination. A good
deal could
be said about this one way or the other. But we do have two important
facts.
First
of all, we know that she intended to return to
The
second important fact is that P intends to stay in
I
did not really care how you decided, as long as you addressed the
relevant
considerations.
What
about the citizenship of D? It is clearly a citizen of
D
has two factories (one in
Using
the “nerve center” test for principal place of business would therefore
place
it in
So
we probably have a diversity case. If P is domiciled in
Most
of you handled this part of the essay question fine. Things changed
when you
moved to personal jurisdiction.
PJ
It’s
worth mentioning that what is relevant (according to FRCP 4(k)(1)(A))
is
whether a
Most
of you recognized that PJ over D is not possible simply through tagging
an
officer of D in
There
also seems to be no property of D in
Once
we’ve set these aside, there are really only two arguments for PJ over
D. The
first is that D has such substantial and continuous contacts with
Virginia that
there would be general jurisdiction over it, that is, jurisdiction for
any
cause of action, no matter how unrelated it is to D’s activities in
Virginia.
When
assessing whether there is general jurisdiction, discussion of cases
that deal
with specific jurisdiction (such as Asahi or World-Wide Volkswagen)
were
irrelevant and showed serious confusion on your part. The case that we
read
that dealt with general jurisdiction was Perkins (plus we discussed the
Helicopteros case briefly).
The
problem with finding general jurisdiction over D is that the contact
with
Once
one concentrates on current in-state activities it is
impossible to find
general jurisdiction. One cannot plausibly say that D could be sued on any
cause of action in
So
the only possibility is specific jurisdiction. But there is a
substantial
hurdle to finding specific jurisdiction. P’s cause of action concerns
an
accident in
Many
of you blithely discussed D’s blender ads in
The
fact D advertises a bit in the western part of
For
example, in McGee the reinsurance contract that was sent into
Even
in World-Wide Volkswagen, the plaintiffs argued that the fact that
Seaway sold
cars that ended up in
That’s
why the best arguments for specific PJ pointed to the fact that P moved
to
I
did not even penalize those who argued that there should be PJ over D
in
Virginia as a result of the blender ads in Western Virginia or Z's ads
in the
state (even though this is fairly clearly wrong), provided that it was recognized that the argument had a
big hurdle to overcome, since P did not
buy the blender in response to those ads.
Finally,
it is worth noting the McGee factors arguing for PJ are the
inconvenience of P
having to return to
Venue
One
reason there would be venue in the E.D. Va. Is if it is a district
where D
resides. See 28 USC 1391(a)(1). According to 1391(c), a corporation
“shall be
deemed to reside in any judicial district in which it is subject to
personal
jurisdiction at the time the action is commenced.” Since we have
concluded that
D is not subject to PJ in
The
second reason for venue in the E.D. Va. is if a “substantial part of
the events
or omissions giving rise to the claim occurred” in that district. See
28 USC
1391(a)(2). One might argue that the fact that P went blind in one eye
is a
substantial part of the events giving rise to the claim. After all, the
claim
includes damages and the blindness that occurred in
It
is worth noting, finally, that because there is clearly venue in
Essay
Question 2. [20 points – 24 minutes]
P1
(a citizen of New York) and P2 (a citizen of New York), joining under
Rule 20,
sue D (a citizen of New Jersey) in the Federal District Court for the
Southern
District of New York. P1 and P2’s suit is under state-law negligence in
connection with a car accident in
Meanwhile,
in D’s answer to P1 and P2’s complaint, D joins a counterclaim against
P1 for
state-law breach of contract. P, D and X had entered into a contract
according
to which P and X were to clean the windows in D’s large apartment
building
twice a year. D claims that P’s work was shoddy for the past few years.
D is
asking for damages and for injunctive relief demanding that P and X use
a
certain cleaning process in the future. D also chooses to join X to his
counterclaim against P1. X is a citizen of
Let
us begin with P2’s motion to dismiss. Does P1’s cross-claim against P2
have
supplemental jurisdiction? It is part of the same constitutional case
or
controversy as P1’s and P2’s diversity actions against D. (It would be
described as pendent.) So there is no problem as far as 28 USC 1367(a)
is
concerned. But the cross-claim falls under one of the exceptions to
supplemental jurisdiction spelled out in 1367(b). First of all, this
case is a
“civil action of which the district courts have original jurisdiction
founded
solely on section 1332,” because P1’s and P2’s actions against D are
founded
solely on diversity. Second, the cross-claim is a claim by a plaintiff
against
a person made a party under Rule 20. Furthermore, “exercising
supplemental
jurisdiction over such claims would be inconsistent with the
jurisdictional
requirements of section 1332,” because P1 and P2 are not diverse. So
P2’s
motion will succeed.
It
is worth noting that this is probably the right result. After all, if
we
allowed supplemental jurisdiction for P1’s cross-claim against P2, P1
and P2
could collusively subvert the requirements of diversity and get their
lawsuit
into federal court by finding some diverse defendant to sue and then
bringing
their non-diverse cross-claim in under supplemental jurisdiction.
Some
of you said there would be supplemental jurisdiction because P1 joined
his
cross-claim against P2 under Rule 13(g), and 13(g) is not mentioned in
the
exceptions in 1367(b). This is a mistake. The question is not the Rule
used to
join the action being assessed for supplemental jurisdiction.
The
question is how the person against whom that action is brought was
made a
party. P2 was not made a party through 13(g). He was already a
party before
P1’s cross-claim was brought. P2 was made a party through Rule 20(a).
Let’s move on to P1’s motion to dismiss. Notice that D&