Exam Answer Key Civil Procedure 2010 PDF

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Exam Answer Key Civil Procedure 2010 MICHAEL STEVEN GREEN

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EXAM CODE # CIVIL PROCEDURE □ Exam Questions ______________________

Law 102 □ Scantron

Please write this code number on each blue book or as a header to each page of typed exam turned in.

FALL 2010 □ Exam Answers December 16, 2010 Four Hours

This examination consists of 14 pages, including this cover sheet. This examination, with the cover sheet, must be returned. TIME: You have Four Hours for this exam. Try your best to finish. SCORING: The total number of points for the exam is 240. That’s one minute of exam time per point. Pace accordingly. Part I consists of 11 multiple-choice questions, each of which is worth 5 points. Use the scantron card for your answers. Part II consists of 8 essay questions (some of which require only short answers). The total number of points for Part II is 185. 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: a) Friedenthal, Miller, Sexton, & Hershkoff, Civil Procedure: Cases and Materials Compact Tenth Edition for Shorter Courses (West 2010) (or for those of you who accidentally bought it, the longer edition) b) Material posted on the website for the course.

2) A statutory supplement, such as FEDERAL RULES OF CIVIL PROCEDURE (West), but not one that offers any glosses on the federal rules. You may bring only books that offer the text of the rules, not explanations of their meaning. 3) Any outline made by you or by a study group in which you participated. 4) Your class notes. Use of the Web is prohibited.

Part I: 11 Multiple Choice Questions – 5 points each Question 1) Which of the following causes of action in bold is most likely to have supplemental jurisdiction under 28 U.S.C. § 1367? Assume that the amount requested is the true amount in controversy for that action. a. P1 (a citizen of New York) and P2 (a citizen of Connecticut) sue D (a citizen of New Jersey) for state law battery in federal court in New Jersey. Both P1 and P2 ask for $200,000 from D. P1 joins a crossclaim against P2 for his damages of $1,000 in the same brawl. b. P (a citizen of New York) sues D (a citizen of New Jersey) for state law battery in federal court in New Jersey, asking for $200,000. D joins a counterclaim against P under state law battery for damages of $50,000 caused by P in the same brawl. P joins a third-party complaint against his insurer I (a citizen of New York) under state law for indemnification under P’s insurance contract with I, on the ground that I is liable to P for all or part of P’s liability to D. c. P (a citizen of New York) sues D1 (a citizen of New Jersey) for state law battery in federal court in New Jersey, asking for $200,000. Joined to P’s action against D1 is an action under state law battery against D2 (a citizen of New Jersey) for $50,000 for the damages D2 caused P from the same brawl. d. P (a citizen of New York) sues D (a citizen of New Jersey) for $50,000 for violation of federal securities law. P joins an action against D for $50,000 for breach of an unrelated contract. e. P (a citizen of New York) sues D1 (a citizen of New Jersey) and D2 (a citizen of New York). P's action against D1 is for $1,000,000 under federal antitrust law. P alleges that D1 entered into an agreement in restraint of trade with D2. P's action against D2, which is for $1000, is under New York state antitrust law concerning the same agreement in restraint of trade.

Question 2) Which of the following causes of action in bold is least likely to have federal subject matter jurisdiction (whether original or supplemental)? Assume that the amount requested is the true amount in controversy for that action. a. P (a citizen of New York) sues D (a citizen of Connecticut) under state law battery for $100,000. D joins a state law contribution action for $50,000 against X (a citizen of Connecticut) on the theory that X was a joint tortfeasor with D. b. P (a citizen of New York) sues D (a citizen of Connecticut) under state law battery for $100,000. D joins a state law battery action against P for $50,000 for D's damages in the same brawl. c. P (a citizen of New York) sues D1 (a citizen of Connecticut) and D2 (a citizen of New Jersey) under state law battery. P asks for $100,000 from each. D1 joins a state law battery action against D2 for D1's damages of $20,000 in the same brawl. D1 also joins an unrelated state law breach of contract action for $20,000 against D2. d. P (a citizen of New York) sues D (a citizen of Connecticut) under state law battery for $100,000. D joins a state law action against P for $100,000 for breach of an unrelated contract. e. P (a citizen of New York) sues D1 (a citizen of New Jersey) for $1,000,000 under federal antitrust law for entering into an agreement in restraint of trade. P joins a $10,000 action against D under New York state antitrust law concerning the same agreement.

Question 3) In which of the following actions brought by Jones against Smith is it least likely that the court has personal jurisdiction over Smith under the Fourteenth Amendment? Smith is domiciled in Nevada. Do not assume any other connection between Smith and California beyond those specified. a. Jones is suing Smith in state court in California for battery concerning a brawl that the two got into in Nevada. Jones lures Smith into California by having a friend phone Smith telling him that he won a contest, and that he must collect the prize in California. While Smith is in California, Jones has Smith served. b. Smith is suing Jones in state court in California for battery concerning a brawl that the two got into in New York. Jones counterclaims against Smith for battery concerning a brawl that the two got into in Nevada. The counterclaim is served upon Smith by delivering it to Smith's attorney in Nevada. c. Jones is suing Smith in state court in California for battery concerning a brawl that the two got into in California. Smith is served in Nevada. d. Jones is suing Smith in state court in California for battery concerning a brawl that the two got into in Nevada. Jones asks for $10,000 in damages. Jones has some real property in California owned by Smith worth $50,000 attached at the initiation of the lawsuit. Smith is served in Nevada. e. Jones is suing Smith in state court in California for battery concerning a brawl that the two got into in Nevada. At the time of the brawl, Smith was domiciled in California. But he had moved to Nevada by the time Jones filed the suit against him. Smith is served in Nevada.

Question 4) Which of the following cases is least likely to have federal subject matter jurisdiction if brought in federal court? Assume that any relevant amount in controversy requirement is satisfied. a. P (a German national admitted for permanent residency in the United States and domiciled in New York) sues D (a U.S. national domiciled in New York) for violation of federal securities law. b. P (a German national admitted for permanent residency in the United States and domiciled in California) sues D (a U.S. national domiciled in New York) for violation German law. c. P1 (a German national domiciled in Germany) and P2 (a U.S. national domiciled in New York) sue D1 (a U.S. national domiciled in California) and D2 (a German national domiciled in Germany) for violations of New York law. d. P1 (a German national domiciled in Germany) and P2 (a U.S. national domiciled in New York) sue D (a French national domiciled in France) for violations of New York law. e. P (a German national illegally in the United States but domiciled in New York) sues D (a U.S. national domiciled in New York) for violation of New York law. Question 5) Congress is considering passing a statute to protect First Amendment rights by allowing either the plaintiff or the defendant to removal to federal district court any state law defamation or libel action brought in state court, regardless of the citizenship of the parties, if the defendant challenges the constitutionality of the state law under the First Amendment. Which of the following is most accurate? a.

The statute is constitutional.

b. The statute is unconstitutional because federal defenses do not create federal subject matter jurisdiction. c.

The statute is unconstitutional because in-state defendants may not remove.

d.

The statute is unconstitutional because it is not arguably procedural.

e. The statute is unconstitutional because it abridges, enlarges, or modifies substantive rights.

Question 6) P (a citizen of New York) is suing D (a citizen of Ohio) for state law negligence in the Federal District Court for the Southern District of New York in connection with a car accident that occurred in Ohio. D has no contacts with the state of New York. P has a process server serve D in hand with a summons and complaint at his home in Ohio. Which of the following statements about D's waiver of the defense of lack personal jurisdiction is most accurate? a. If D’s first response is an answer that includes the defense of failure to state a claim, the defense of lack of personal jurisdiction is waived. b. Assume D’s first response is an answer that omitted the defense of lack of personal jurisdiction. If D amends the answer “as a matter of course” the day after serving the answer on P to include the omitted defense, the defense is not waived. c. Assume D’s first response is a preanswer motion that omitted the defense of lack of personal jurisdiction. If D is allowed by the court to amend the motion to include the omitted defense the day after serving the motion on P, the defense is not waived. d. Whether D’s defense of lack of personal jurisdiction is waived must be answered by looking to New York state law. e. D’s defense of lack of personal jurisdiction cannot be waived. Because it is unconstitutional for a federal court to assert personal jurisdiction over D, D can bring up the defense any time – including on appeal. In addition, a court must dismiss P’s action sua sponte if it notices that the court lacks jurisdiction over D. Question 7) P, D, and X, each driving their own cars, collided into each other. P sues D in federal court under state law negligence for the personal injury that D caused P in connection with the accident. Which of the following is most accurate? (Do not consider whether there is subject matter jurisdiction, personal jurisdiction, or venue for any action.) a. D may, but does not have to, join a state law negligence action against X for the damages that X caused D from the accident. b. D may, but does not have to, join a state law negligence action against P for the damages that P caused D from the accident. c. P may, but does not have to, join a negligence action against Z for the damages that Z caused P concerning an accident that P and Z got into the day after the accident between P, D, and X.

d. If D believes that X will be liable to D under contribution for all or part of D’s liability to P, D must join this contribution action against X. e. Assume D brings the contribution action in d. above against X. P may, but does not have to, join a state law negligence action against X for the damages that X caused P from the accident. Question 8) Which of the following cases, originally filed in state court in New York, is most likely to be successfully removed to federal court (that is, not remanded back to state court)? Assume that the amount requested is the true amount in controversy for that action. a. P (a domiciliary of New York) sues D (a domiciliary of California) for divorce under New York state law. The marital assets to be distributed under the divorce decree are more than $10,000,000. b. P (a domiciliary of New York) sues D1 (a domiciliary of New Jersey) and D2 (a domiciliary of New Jersey) for state law negligence concerning an accident that P, D1, and D2, each driving their own cars, got into in New York. P’s car was first hit by D1 on P’s left side and then, almost immediately after, was hit by D2 on P’s right side. P asks for $1,000,000 from D1, alleging that D1’s negligence in the accident caused him to lose sight in both his eyes. P asks D2 for $500 for the cost of repairing the damages that D2’s collision did to the paint on the right side of P’s car. c. P (a domiciliary of New Jersey) sues D (a domiciliary of New York) for state law negligence in connection with a car accident in New York. P asks for $100,000 in compensation for the damages that D caused P due to P’s loss of his thumb and three fingers in the accident. d. P (a domiciliary of New York) sues Officer D (a domiciliary of New Jersey) for violations of federal civil rights law in connection with what P alleges was his unlawful arrest in New York. P asks for $50,000 in damages. P also joins an unrelated state law breach of contract against Officer D for $50,000. e. P (a domiciliary of New York) sues D (a domiciliary of New York) for breach of a contract to buy securities. D brings a counterclaim against P for federal securities fraud, due to material misrepresentations P made when they were negotiating the contract.

Question 9) P (a citizen of New York) is suing D (a citizen of New Jersey) in the Federal District Court for the Southern District of New York for medical malpractice under New Jersey state law concerning an operation performed in New Jersey. Which of the following is least accurate?

a. Assume P serves an interrogatory on D, without a subpoena, asking for D’s recollections of what he heard a number of nurses say in the course of the operation, even though D’s recollections are inadmissible hearsay. D must answer the interrogatory. b. A document request served by P on D asks for a report that a private investigator for D made several days after D was served with P’s complaint. The report recounts the nurses’ recollections of the operation. The report is not covered by the work product privilege, because the contents of the report are facts. c. Interrogatories may not be served on the nurses who were present at the operation, asking them what they remember of the procedure. d.

P does not have to be served with a subpoena before he can be deposed by D’s attorney.

e. When examining D’s response to P’s document request, P is surprised to find that D has refused to turn over certain requested materials on the grounds that they are covered by the attorney-client privilege. P may not bring a motion to compel disclosure unless he includes a certification that he has in good faith conferred or attempted to confer with D in an effort to obtain the material without court action. Question 10) P (a citizen of New York) sues D (a German national domiciled in Germany) in state court in New York under German battery law for $100,000 in connection with a brawl that occurred in Germany. The German has no contacts with the United States except for $80,000 in a bank account located in New York and $20,000 in a bank account located in North Carolina. Which of the following is the most accurate? a. The New York court may attach the New York and North Carolina bank accounts as a source of personal jurisdiction over D. b. Assume the New York court attaches the New York bank account as the source of personal jurisdiction over D, D makes a limited appearance, and the court ultimately grants summary judgment to D. P is not claim precluded from suing D in North Carolina state court for the remaining $20,000 of damages. c. Under Shaffer v. Heitner, the New York court cannot use D's bank account in New York as a source of personal jurisdiction over D. d. D cannot get P's action dismissed on venue grounds, since 28 U.S.C. § 1391(d) allows an alien to be sued in any district. e.

D cannot remove P's action to federal court.

Question 11) P, a domiciliary of New York, brings a $300,000 state law fraud action against D, a domiciliary of Pennsylvania, in the Federal District Court for the Eastern District of Pennsylvania. In P's complaint, which is signed by P's lawyer in accordance with Fed. R. Civ. P. 11(a), there is an allegation that D knowingly lied to P about termites in a house in order to induce P to buy it. After discovery, it becomes clear that there is no evidence in favor of the allegation in P's complaint that D believed that there were termites in the house at the time he sold the house to P. D brings a motion for Rule 11 sanctions against P. What one of the following is a valid reason why this motion should fail? a.

P, as a represented party, cannot be subjected to Rule 11 sanctions.

b.

Rule 11 does not apply to discovery.

c. Since it was a fraud action, P was allowed under R. 9(b) to allege a condition of mind generally. It was not necessary for him to state any evidence in favor of D's condition of mind. d.

P's lawyer had a good faith belief in the truth of the allegations in the complaint.

e.

None of the above is a valid reason to deny Rule 11 sanctions against P.

(Short) Essay Question 1. [12 points] P, D, and X – each driving his own car – got into a car accident in Connecticut. P sued D for negligence under Connecticut law in Connecticut state court. P lost – although the jury found that P was not contributorily negligent, it also found that D was not negligent. Although X was aware of the lawsuit and could have intervened, he chose not to. After P v. D came to a judgment, X then sued P and D for negligence under Connecticut law in federal court in Connecticut in connection with the same accident. (The source of federal subject matter was diversity.) Both P and D argued that X was claim precluded from suing concerning the accident or, if he was not claim precluded, that he was issued precluded from relitigating whether P and D were negligent. In one brief paragraph – how should the federal court decide and why? Also in one brief paragraph – was X a necessary party in the suit between P and D and why or why not? Essay Question 2. [20 points] Choose of the following opinions the one you most disagree with. Explain why. Justify your conclusion. Part II-A of Justice O'Connor's opinion in Asahi Metal Industry Co. v. Superior Court Justice Brennan's opinion in Asahi Justice Stevens's opinion in Asahi

Justice Scalia's opinion in Burnham v. Superior Court Justice Brennan's opinion in Burnham Essay Question 3. [20 points] Briefly, but in your own words, what was the standard for granting a motion to dismiss for failure to state a claim under Conley v. Gibson? Briefly, but in your own words, did Twombly/Iqbal change that standard, and if it did, how? Essay Question 4. [25 points] P (a citizen of New York) sued D (a citizen of Connecticut) in the Federal District Court for the District of Connecticut under Connecticut law for negligence in connection with a car accident that occurred in Connecticut. P asked for $200,000 in damages. In his answer, D admitted P's damages and admitted that if he had been negligent, P's damages would be have been caused by this negligence. But D denied that he was negligent. After discovery, P moved for summary judgment, offering in support of his motion an affidavit from a witness who stated that she saw D texting at the time of the accident. D offered no evidence in opposition to the motion. Texting while driving is a violation of Connecticut traffic regulations. Furthermore, under Connecticut law, if the defendant is found to have violated the texting regulation, there is a presumption of negligence that can be overcome only through the introduction of contrary evidence by the defendant. Under Connecticut law, however, a jury is not required to accept the testimony of a witness, even if the witness is disinterested, uncontradicted, and unimpeached. In the case of Jones v. Smith, however, a federal court in Connecticut held (in the context of a federal...