|
Question 1 of 30
|
2.5 Points
|
A defendant should always raise
any objections to personal jurisdiction in the first response to the
plaintiff’s complaint or the issue is waived and may not be reconsidered.
|
Feedback: See pages 118,
120-121. A defendant must raise objections to venue, personal
jurisdiction, and form and method of service of process in their first
response to the complaint (pre-answer or answer) or the issue is waived
and may not be reconsidered at a later time.
|
|
|
|
Question 2 of 30
|
2.5 Points
|
A defendant can remove a case
from state court to federal court even if the federal court could not have
heard the case initially.
|
Feedback: See page 27- “FAQ”. Removal
jurisdiction is available to defendants only in cases that the plaintiff
could have commenced in federal court.
|
|
|
|
Question 3 of 30
|
2.5 Points
|
Is it possible for a defendant
to file a motion to dismiss for personal jurisdiction and a motion for summary
judgment simultaneously?
|
Feedback: A motion to dismiss
is asserted prior to the answer (as an alternative to an answer) or in
the answer to the complaint. A motion for summary judgment is made after
the filing of the complaint and answer.
|
|
|
|
Question 4 of 30
|
2.5 Points
|
John Doe (Arizona) sues Jane
Smith (California) and Joe Johnson (California) in federal district court
in California.
|
A.The court does not have
jurisdiction as the defendants are both from California and not diverse.
|
|
|
B.The court does not have
jurisdiction because it was filed in California.
|
|
|
C.The court has jurisdiction
as long as the plaintiff is diverse from the defendants.
|
|
|
D.Both A and B are correct.
|
|
|
Feedback: See page 14. The
Strawbridge rule requires only that the plaintiff and defendant be
diverse- thus parties on the same side may be co-citizens.
|
|
|
|
Question 5 of 30
|
2.5 Points
|
Which of the following cases CAN
NOT be heard in federal court?
|
A.A claim based on the Age
Discrimination under the Federal Employment Act.
|
|
|
B.A tort claim between
citizens of the same state.
|
|
|
C.A case brought by the State
of New Jersey against the State of New York.
|
|
|
D.A case between a citizen
from Maine and a citizen from Rhode Island, where the claim is more than
$75,000.
|
|
|
Feedback: Questions of federal
law and diversity between different states and citizens of different
states are within the jurisdiction of Federal courts. State tort cases
between citizens of the SAME state are restricted to state court.
|
|
|
|
Question 6 of 30
|
2.5 Points
|
Johnson (D. Mass) wants to sue
Alcott (D.N.H.) and Montgomery (D. Me.) for trasspassing on Johnson’s
property in Massachusetts. Where would Venue be proper?
|
A.D.N.H.
|
|
|
B.D. Me.
|
|
|
C.D.N.H. or D. Me.
|
|
|
D.D. Mass
|
|
|
Feedback: This case would be
governed by §1391(a) as it is a diversity case. The defendants do not
live in the same state, making section 1 unavailable. That leaves section
2, a district in which a substantial part of the acts or omissions
occurred. Here the tresspass alleged occurred in D. Mass. making it a
district where venue is proper. Because Section 2 produced a district in
which venue is proper, section 3 is not applicable. Because the
defendants do not reside in the same state, none of their districts can
form the basis of proper Venue. See pages 66-68
|
|
|
|
Question 7 of 30
|
2.5 Points
|
Ted sues Larry for negligence,
alleging that he suffered emotional distress from witnessing injury to a
close friend in an accident with Larry. Larry responds by moving to dismiss
for failure to state a claim under Rule 12(b)(6). After the court denies
the motion, but before Larry answers, Larry files a second pre-answer
motion to dismiss per lack of venue under Rule 12(b)(3). Which of the
following is True?
|
A.The motion is improper
because Larry cannot make a second pre-answer motion under Rule 12 to
assert a defense that was available when the first motion was made.
|
|
|
B.The motion is improper,
because Larry’s failure to assert his Rule 12(b)(3) motion in his first
pre-answer motion waives the objection of failure to state a claim.
|
|
|
C.The motion is proper because
the objection is not waived by making a motion on other grounds, and may
be raised at any time.
|
|
|
D.The motion is proper because
the motion to dismiss for lack of venue under Rule 12(b)(3) is not
considered one of the four “disfavored defenses.”
|
|
|
Feedback: The correct answer
is A. A defendant has two options when making certain motions to
dismiss. First, he can file the motion prior to his answer to the
complaint (pre-answer). If he chooses this method, four of the 12(b)
motions must be filed at that time. If he chooses not to
pre-answer, he must then file at least the four “disfavored” 12(b) motions
in his answer. Either way he chooses to file, those four 12(b) motions
must be raised in the initial response. A defendant cannot file 2
pre-answer motions for any of the 12(b) defenses, which is why A is the
correct answer. See Rule 12(g).
12(b)(6) motions should also be raised in the initial response generally,
but unlike the four 12(b)s that MUST be filed initially, the 12(b)(6)
motion is not waived if he fails to file it in the first response. Rule
12(g)(1) only prevents Larry from making this motion in the form of a
second pre-answer motion. Larry can file the 12(b)(6) motion in his
answer or by another motion after pleading or at the trial on the merits.
“If a defendant files a pre-answer motion such as a motion to dismiss,
the motion must include these defenses to avoid waiver.” page 120
|
|
|
|
Question 8 of 30
|
2.5 Points
|
You get the oil in your AMC
Pacer changed at Skippy Lube in Jefferson City, Missouri, before heading
down to Austin, Texas, to visit a friend. In Arkansas your car starts to
make a strange noise. When you pull over you notice that there is no oil in
the engine and it appears that the cap was never put back on. You
immediately call your lawyer, who finds that Arkansas has a long-arm
statute providing that a court may exercise personal jurisdiction over a
person who acts directly or by an agent as to a cause of action arising
from the person’s transacting any business in this state. Can you sue
Skippy Lube in Arkansas? No
|
Feedback: See pages 42-44.
Personal jurisdiction is based on either domicle, consent, physical
presence/personal service, or minimum contacts. Here it would be based on
the minimum contacts tests. Long arm statutes require specific types of
contact with the forum state in order to obtain personal jurisdiction.
Here, there was NO contact made by Skippy Lube in Arkansas. The work was
done in Missouri and Skippy Lube is located in Missouri.
|
|
|
|
Question 9 of 30
|
2.5 Points
|
Same facts as the road trip
scenario above, but you have the oil changed in Arkansas on your way to
Texas. Should you sue in Arkansas or Missouri?
|
Feedback: Arkansas is when the
action occurred. While Missouri may have personal jurisdiction over
Skippy Lube, Arkansas has both personal and subject matter jurisdiction.
The first two rings of jurisdiction.
|
|
|
|
Question 10 of 30
|
2.5 Points
|
John Doe (resident of So.
District of California) sues Joe Smith (resident of No. District of
California) for Federal employment discrimination in the So. District of
California. Smith does not object to venue and answers the complaint. Prior
to the hearing on the merits, Smith files a motion to change venue to No.
District of California where he resides.
|
A.Smiths motion is proper
since he resides in the No. District of California.
|
|
|
B.Smiths motion is proper
because he filed prior to the hearing on the merits.
|
|
|
C.Smiths motion is improper
because he waived his objection to the venue and answered the complaint.
|
|
|
D.Smiths motion is improper
because Doe may file in any district court in California- Smith’s state
of residence.
|
|
|
Feedback: A defendant waives
objection to venue by failing to raise it when he responds to the
complaint. A. could have been the right answer if Smith had properly and
timely objected to venue. B. is incorrect as the motion must be filed in
his answer to the complaint- not during the case. D. is incorrect- venue
is based on the judicial district where the defendant resides- not
anywhere within the state of California.
|
|
|
|
Question 11 of 30
|
2.5 Points
|
Can attorneys depose persons who
are not parties to the suit?
|
Feedback: See page 139. A
deposition is the proper discovery tool used to discover information from
non-parties to the lawsuit. Interrogatories are used for parties to the
lawsuit.
|
|
|
|
Question 12 of 30
|
2.5 Points
|
John Doe sues Joe Smith for
injuries suffered in an accident. During the deposition of Smith, Doe’s
attorney asks him, “didn’t you tell your lawyer that you were speeding?”
Smith’s attorney objects to the question, arguing this information is not
discoverable under the attorney-client privilege to the discovery rules. Is
this objection proper?
|
Feedback: See page 148. The
attorney-client privilege to bars inquiry into communications between a
client and his counsel in the course of legal representation and will not
be discoverable.
|
|
|
|
Question 13 of 30
|
2.5 Points
|
Once a defendant has met its
initial burden of moving for summary judgment, the plaintiff must:
|
A.Point to evidence already in
the record showing the existence of a genuine issue of material fact at
issue.
|
|
|
B.Point to the parts of the
plaintiff’s pleadings that allege matters in issue to demontrate a
genuine issue of material fact.
|
|
|
C.Point to or submit as part
of the response to the motion, evidence which may be admissible, that
demonstrates that there is a genuine issue of material fact at issue.
|
|
|
Feedback: See pages198-201
|
|
|
|
Question 14 of 30
|
2.5 Points
|
When is material protected from
discovery by work product protection?
|
A.When it is confidential
material prepared by a party’s representative.
|
|
|
B.When it is prepared in
anticipation of litigation or for trial by a party or by or for that
party’s representative.
|
|
|
C.When it is confidential
communication between a party and that party’s attorney.
|
|
|
D.When it is prepared in
anticipation of litigation or for trial by any person.
|
|
|
Comment: The work product
protection only protects work by the party or the party’s representative.
|
|
|
Question 15 of 30
|
2.5 Points
|
When may a defendant move for
judgment as a matter of law?
|
A.At the conclusion of the
defendants evidence.
|
|
|
B.At the conclusion of the
plaintiffs evidence.
|
|
|
C.Both A and B.
|
|
|
D.Before the presentation of
any evidence.
|
|
|
|
Question 16 of 30
|
2.5 Points
|
The general rule in Federal
civil court is that a jury’s decision must be unanimous.
|
Feedback: True. See page 213.
Unanimous unless agreed to otherwise.
|
|
|
|
Question 17 of 30
|
2.5 Points
|
Res Judicata only bars
relitigation of legal issues that were decided in the original
action.
|
Feedback: “Issue” preclusion
is called collateral estopel. Res Judicata is “claim” preclusion.
|
|
|
|
Question 18 of 30
|
2.5 Points
|
What is standard the judge is to
apply in granting a new trial based on an incorrect jury verdict?
|
A.”against the great weight of
evidence.”
|
|
|
B.”no rational basis in law.”
|
|
|
C.there is “no disputed issues
of material fact.”
|
|
|
D.no “genuine issue of
material fact.”
|
|
|
|
Question 19 of 30
|
2.5 Points
|
In Federal civil court, a right
to a jury trial is waived unless specifically requested by a party.
|
Feedback: True. See Rule 38,
page 215-216
|
|
|
|
Question 20 of 30
|
2.5 Points
|
For civil cases, the burden of
proof a Plantiff must establish for each element of a claim is perponderance
of the evidence
|
|
Question 21 of 30
|
2.5 Points
|
When a Federal Circuit Court of
Appeals decides to reconsider an appeal to include a decision by all
members of the court, the rehearing is considered:
|
A.ad hoc
|
|
|
B.en banc
|
|
|
C.A mandamus
|
|
|
D.pro se
|
|
|
|
Question 22 of 30
|
2.5 Points
|
A federal court judge finds in
favor of Plaintiff X for violation of his Federal Civil Rights by Defendant
X. However, during the bench trial, the judge denied Plaintiff’s request to
compel discovery of certain evidence. Although Plaintiff X ultimately won
the case, he feels the judge was wrong in denying his motion to compel and
seeks to appeal the denial of the evidence. Which of the following is True?
I. The prevailing party can
always appeal any legal issues rendered by a judge.
II. The Plaintiff won his case and cannot appeal this issue.
III. The Plaintiff must raise his objection at trial in order to preserve
this issue for an appeal.
|
A.III only
|
|
|
B.II only
|
|
|
C.I and III only
|
|
|
D.I only
|
|
|
Feedback: See page 233-234.
Plaintiff X may not have liked the judge’s ruling, but he won his case.
This is the requirement of adversity. While III is technically correct,
it only applies when the party objecting loses the case and files an
appeal. In this case, the Plaintiff won despite the judges ruling to deny
the evidence.
|
|
|
|
Question 23 of 30
|
2.5 Points
|
Tom sues John in state court for
breach of contract. During the trial, the judge excluded a witness
affidavit submitted by John’s attorney. John’s attorney does not object to
the judge’s exclusion of the evidence. The jury finds for Tom. John files
an appeal in the state appellate court, claiming the judge erred in
excluding the affidavit. The court should:
|
A.consider the appeal even if
the evidence was not objected to during the trial
|
|
|
B.not consider the appeal
since John’s attorney failed to object to the exclusion during the trial
|
|
|
C.remand the case back to the
trial judge for him/her to reconsider the evidence
|
|
|
Comment: Because the issue was
not objected to at the trial court level, it cannot be appealed.
|
|
|
Question 24 of 30
|
2.5 Points
|
Following a federal court jury
verdict and award for damages, the judge:
|
A.may determine the amount
awarded by the jury is too high and threaten a new trial unless the
prevailing party accepts less.
|
|
|
B.may determine the amount
awarded by the jury is to low and can set an amount he/she deems is more
equitable.
|
|
|
C.must accept the jury’s award
for damages as a matter of law.
|
|
|
D.may reconvene the jury and
ask them to reconsider the amount awarded.
|
|
|
Comment: A federal court judge
may conclude that the award was too high and threaten a new trial if the
party does not accept less.
|
|
|
Question 25 of 30
|
2.5 Points
|
Andy sues Ray Motors for
injuries suffered while driving a used snowmobile that Ray Motors sold him.
His suit is based on breach of warranty (a contract theory) and strict
products liability (a tort theory). Ray Motors moves to dismiss the
contracts claim on the ground that the state long-arm statute does not
authorize jurisdiction over it. The judge concludes that the long-arm
statute allows the suit against Ray Motors for the tort claim but not the
contract claim and thus dismisses the breach of warranty claim. The case
goes to trial on the strict liability claim. After Andy presents his
evidence, the trial judge grants a directed verdict for Ray Motors on the
ground that Andy has not presented sufficient evidence that the snowmobile
was defective. Judgment for Ray Motors is entered. Later, Andy sues Ray
Motors again, for the same injuries. This time, he bases his claim in this
action solely on a negligence theory. Andy’s second action:
|
A.will not be barred because
the contract claim was dismissed for lack of jurisdiction so there has
been no final decision “on the merits.”
|
|
|
B.will be barred because the
negligence claim could have been brought in the first action but was
omitted.
|
|
|
C.will not be barred because
the grant of the directed verdict motion did not decide the case on the
merits in the first action.
|
|
|
D.will not be barred since his
claim in the second action is not the same claim as his claim in the
first.
|
|
|
Feedback: Res Judicata
requires all legal theories of relief to be asserted in one lawsuit. Andy
was required to raise the negligence theory in the first case along with
his other legal claims for relief. See page 252- Same Claim.
|
|
|
|
Question 26 of 30
|
2.5 Points
|
John Doe files a complaint
against Joe Smith for breach of contract in California. Smith files a
motion to dismiss for lack of personal jurisdiction, since Smith lives in
Arizona and the contract was entered and performed in Arizona. The judge
grants Smith’s motion to dismiss. Doe then files a second lawsuit in
Arizona against Smith for the same breach of contract claim. The doctrine
of res judicata does not bar Doe from filing the second lawsuit.
|
Feedback: True. Certain
dismissals, like for lack of subject matter jurisdiction, do not bar a
second action since the judgement was not based on the merits of the
claim. Remember, one of the requirements for res judicata to apply is
that the judgement that was entered was “on the merits” and that the
parties had a full and fair opportunity to litigate the claim. see pages
258-259.
|
|
|
|
Question 27 of 30
|
2.5 Points
|
John Doe sues Joe Smith for
trespassing on his property on Feb. 26, 2008. Smith argues he had an
easement allowing him on Doe’s property. The court finds in favor of Smith.
Doe then sues Jane Johnson for also trespassing on his property on a
separate occasion but also on Feb. 26, 2008. Does Res Judicata bar Doe from
suing Jane Johnson in a second action?
|
Feedback: The parties are not
the same in the second action. Res Judicata only applies when the parties
in the second lawsuit are the same as those in the first lawsuit. See
page 253. Same parties
|
|
|
|
Question 28 of 30
|
10.0 Points
|
Cathy Copy, author of a book
called Carry Motter and the Apprentice’s Gem, is sued in Federal District
Court by HP publishers for copyright infringement and breach of contract
for copying the works of another author. The Court dismisses the copyright
infringement claim under Fed. R. Civ. P. 12(b)(6) but allows the breach of
contract claim to proceed to trial. The jury finds for the defendant and
the court enters judgment. HP publishers files suit against Cathy Copy in a
different federal jurisdiction raising the copyright infringement claim
again. What are the implications of a second law suit for the copyright
infringement claim from a res judicata perspective? Does it matter that the
Court in the first suit has entered a final judgment? Refer to the Second
Restatement of Judgments (as cited in your text) for the government rules.
The Collateral Estoppel doctrine
is barring issues that have been litigated before.
Res Judicata is the barring of
claims that have either been litigated or could have been litigated.
In the case of Cathy Copy HP
publishers filed a suit against Cathy Copy in a different a federal
jurisdiction raising copy infringement claims again. In the previous trial,
the court dismissed the copy infringement claims, and allow the breach of
contract claims to proceed to trial.
The implication of the use of
res judicial for the copywriter claim would be allowed, due to the fact
that the judgment was been made final.
It does not matter if the courts
made a final judgment because Rule 59 can be used, if allowed. Rule 59 is
for a New Trial; Altering or Amending a Judgment.
|
Comment: I would disagree with
your analysis. Under these facts, the copyright claim was dismissed for
failure to state a claim, not on the merits of the case. Therefore, it
would not be barred by res judicata.
|
|
|
Question 29 of 30
|
10.0 Points
|
Assuming the fact pattern above,
Cathy Copy has written a new book, Carry Motter and the Closet of Lies.
Cathy Copy is sued again in Federal District Court by HP publishers for
copyright infringement and breach of contract. How might this law suit be
affected by the collateral estoppel doctrine? Explain what the collateral
estoppel doctrine is.
Collateral Estoppel can be
pleaded by the defendant in civil cases. Collateral Estoppel does not allow
the reiteration of a claim, demand or cause of an action or opposition to
an issue. It is to prevent duplicated fruitless claims when re-litigation
is probably not going to change the outcome of the case.
Collateral estoppel would only
be allowed if the rules applied to the case and if the new case was
inclusive of the same claims and issues. The fact pattern describes a new
book and does not go into detail about the specifics of the law suit from
HP publishers. The Issues must be identical in order for collateral
estoppel to be used. So in order for collateral estoppel to apply the
following requirements would have to be met to apply for issue preclusion,
of collateral estoppel
1. Identical issue.
2. Actually litigated and
determined.
3. Essential to the judgment.
4. Same parties and the
mutuality doctrine.
|
|
Question 30 of 30
|
12.5 Points
|
Discuss in detail how you think
jurisdictional issues might arise in a law office that handles general
civil matters. Touch on all three of the “hoops” of jurisdiction discussed
in our textbook.
Jurisdiction can affect the
issues of a civil matters in a law office because in order to have proper
jurisdiction three things must be present.
|
No comments:
Post a Comment