1. Phrase the rule of substantive law that the plaintiff is probably seeking to invoke in the Form 9 complaint in terms of major and minor premise, “if” and “unless”.

1. Major Premise (the law): “if a person driving a motor vehicle drive without due care for a pedestrian, and if the person driving the motor vehicle strikes the pedestrian, and if the pedestrian thereby suffers harm, and unless the pedestrian is contributorily at fault for the accident, then the pedestrian is entitled to relief.” Note that the unless was not pleaded, but is still part of the substantive rule of law.
Minor Premise (the facts): Defendant was driving a motor vehicle without due care for pedestrians, defendant struck the plaintiff (a pedestrian) crossing the highway, plaintiff was thereby injured.

2. What are the considerations that ought to govern the allocation between the parties of the burdens of allegation?

2. There are three major considerations. First, which party has greater access to the proof? Second, what is allocation is most convenient and efficient? Third, what allocation is the most fair from a work burden standpoint given that the plaintiff is bringing the action?

3. Why are fraud, libel, and deceit claims handled by Rule 9(b) which requires that they be stated “with particularity”, whereas Rules 8(a) and 8(c) state that the normal pleading is “short”, “plain”, “simple, concise, and direct”?

3. Fraud, libel and deceit claims are generally disfavored because they are often abused and also difficult to prove. Thus, the particularity requirement tends to narrow the legal and factual issues further so that these disfavored claims may be isolated early in litigation.

4. Does the plaintiff in Form 9 need to plead the amount of his medical expenses?

4. To answer this question, the goals of the federal rules of civil procedure concerning pleadings must be examined. The primary goal of the rules of pleading, when taken in context with the rest of the rules, particularly those concerning discovery and extensive pretrial motion and conference practice, is general notice to the parties of the existence, nature, and grounds of a claim. As such, the pleadings should probably only include allegations that make up the “if” portions of the substantive rule of law for which the plaintiff is seeking relief. In a negligence case, the plaintiff must allege that he was damaged in order to invoke the law of negligence. Rule 8(a)(3) also requires that the plaintiff include a demand for judgment for the relief that he seeks. However, there is no requirement to detail the various portions of the damage. Note that Form 9 pleads medical expenses, but not lost work or pain and suffering sums. Thus, the plaintiff is not required to plead the amount of his medical expenses, which in the Form 9 facts, are only a portion of the damages (also lost work, etc.)

5. What is the problem with the statement in the Conley case that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”?

5. The statement is too broad. It can not be taken literally because then the pleadings may not give sufficient notice under the rules. For example, it would appear to be enough for the plaintiff to recite in his complaint “the defendant wronged me.” This statement was made at a time when the majority of legal practitioners were still using unnecessarily rigid forms of pleading left over from the days before the promulgation of the federal rules. This was a broad statement to shake up the profession into accepting the liberality of the rules of pleading.

6. In the Sierocinski case, the plaintiff brought a negligence action for the negligent manufacture of a blasting cap in such a way as caused it to explode prematurely. After losing the negligence action, should it be open to the plaintiff to commence a new action, basing his claim on the new theory of breach of warranty, which was not mentioned in his original pleadings?

6. The answer implicates res judicata. It depends on how the word “claim” is defined for res judicata purposes. If different “claims” means actions arising from a different events, then the plaintiff would be barred under res judicata. However, if different “claims” means different legal theories, the plaintiff’s new action is not barred.

7. The Mohammed case found that an attorney had not made any reasonable inquiry into the facts and legal theories supporting the claim of his client before alleging the claim of libel and slander in a pleading. The plaintiff ultimately lost and the defendant sought sanctions to reimburse for costs. What defect does this case reveal in the idealized procedural scheme (notice pleading plus the possibility of extensive discovery and then expedited disposition)? How do the federal rules attempt to control this defect? What might be the drawbacks to this approach?

7. When pleadings are “plain” and “short” and are made for general notice only, it is easy for a person to bring an action and submit the opposing party to extensive and costly discovery. Because the pleadings do not need to state particularized facts supporting the action, it may be much later in the discovery process by the time the claim is shown to be without merit. By then, substantial time and money has been spent. The federal rules, in Rule 11, require the attorney to sign the pleadings, averring that the pleading is not frivolous, after making “an inquiry reasonable under the circumstances.” In this way, some control can be exercised over abuse of the liberal pleading rules, without sacrificing their liberality. A drawback to this approach is that an attorney may be deterred from making a borderline frivolous argument for change in existing law, because he is afraid of penalties.

8. Suppose a plaintiff serves a proper complaint and the defendant does nothing during the prescribed time period. What should the plaintiff do to take advantage of the default.

8. The plaintiff should make application to the court for a default judgment under Rule 55(a) and (b). 

9. What steps may the defendant make to cure such a default? What sort of showing is required?

9. The court may, “for good cause shown”, set aside an entry of default under rule 55(c), and if judgment on default has already been entered, likewise set it aside in accordance with rule 60(b).

10. Defendant is served with a complaint. She makes a pre-answer motion to dismiss on the grounds of improper venue under 12(b)(3). The motion is denied. She immediately moves under 12(b)(6) for failure to state a claim under which relief can be granted. Assuming that the defendant is correct about the claim being faulty, how should the court rule?

10. Denied. Under Rule 12(g), a defendant may only make a single pre-answer motion, because she is required to consolidated all defenses “then available” into a single motion, with the exception of the “super defense” of 12(b)(1) - lack of subject matter jurisdiction, because it may be made at any time.

11. Assume that the judge denies the 12(b)(6) motion in question 10. Defendant then answers denying all allegations, and setting forth the affirmative defense of contributory negligence under rule 8(c). The defendant then again asserts the 12(b)(6) motion that was previously denied Assuming that the defendant is correct about the claim being faulty, how should the court rule?

11. Granted. A 12(b)(6) or 12(b)(7) motion is considered a “strong” defense and may be made at any time up through “trial on the merits” according to Rule 12(h)(2). Thus, the defendant’s improper raising of the 12(b)(6) motion before answer (since she already exhausted her “one pre-answer motion” with the 12(b)(3) which was denied) does not prejudice her right to raise it again after answer.

12. Defendant is served with a complaint. She answers by denying all allegations. 10 days later, she then moves to dismiss under 12(b)(2) for lack of jurisdiction over the person. Assuming that she is correct about jurisdiction, how should the court rule?

12. Denied. The defenses under 12(b)(2)-(5) are considered “disfavored defenses.” As such, they are lost by operation of 12(h)(1) if they are “neither made by motion under this rule nor included in a responsive pleading.” 

13. May the defendant in question 12 recover from her untimely mistake? How?

13. Yes. Rule 12(h)(1) will not operate to waive the 12(b)(2)-(5) defenses if the pleading is amended as a matter of course as permitted by rule 15. According to rule 15, she may amend as a matter of course if “the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, ...within 20 days after it is served.” No responsive pleading is allowed, under Rule 7(a), to an answer which simply denies all of the allegations and contains no counterclaims. Since she still has 10 days left before the 20 day period expires, she may amend her answer to include a personal jurisdiction defense as long as the action has not been placed on the trial calendar.

14. Why are the defenses enumerated in 12(b)(2)-(5) disfavored as indicated above? Why are those in 12(b)(6)-(7) preserved until “trial on the merits?” Why is the Rule 12(b)(1) super defense never waived?

14. The disfavored defenses are waived by application of rule 12(g) and 12(h)(1) in order to work against piecemeal consideration of a case. These particular defenses are “threshold” defenses. Lack of jurisdiction over the person (12(b)(2)) and improper venue (12(b)(3)) are defenses based on the idea that the court does not have power over the person because it would be unfair to try the person in that court. If the defendant answers or moves without raising these points, he is impliedly waiving any claim that he had that the procedure was unfair because he is voluntarily submitting to the procedure. Insufficiency of process (12(b)(4)) and service of process (12(b)(5)) are defenses based on the idea that the defendant does not have proper notice. Similarly to the jurisdiction and venue issues, the defendant impliedly admits proper notice once he has answered or moved otherwise. It would be a waste of time and effort to allow these threshold defenses to be raised later, such as after complex discovery has already been initiated. The failure to state a claim (12(b)(6)) and failure to join a party (12(b)(7)) are stronger defenses because it is often well into discovery or trial that a defendant has sufficient facts to determine that there are insufficient facts to support the claim, or that another defendant should be joined. Finally, the lack of subject matter jurisdiction motion (12(b)(1)) is a super defense because of the strong public interest in limiting the courts to operate within their given authority. Otherwise, the courts could abuse their power by reaching beyond their authority.

15. Archie and Brian have a contract dispute. They settle out of court for $500. Archie then brings an action for breach of contract in the federal courts, and serves a complaint on Brian. Brian responds by denying all of the allegations of the complaint in his answer. Months later, at the pretrial conference, Brian raises the affirmative defense of accord and satisfaction. Should the judge properly dismiss?

15. No. Under rule 8(c), affirmative defenses, such as accord and satisfaction, must be raised in the answer. Although no express provision for waiver of affirmative defenses is mentioned in the rules, it follows naturally from the pattern of the waiver of the 12(b) defenses by 12(h)(1). By parallel structure, Brian waives all affirmative defenses that are not included in his answer.

16. May Brian cure the defect of his failure to include the affirmative defense in his answer by amending as a matter of course? If not, then may he amend with leave of the court?

16. No. The time for amending as a matter of course under Rule 15(a) has expired. Here, the answer does not allow a response under Rule 7(a) because it simply denies the allegations and does not make counterclaims. Thus, Brian may only amend if “the action has not been placed upon the trial calendar,” and “within 20 days after it is served.” Brian has waited too long. It also appears that he may not amend with leave of the court because, looking at the rule 12(h)(1)(B) which provides the parallel structure on which this is based, the amendment must have been made “as a matter of course” in order to avoid waiver.

17. Defendant moves for dismissal under 12(b)(6) failure to state a claim on January 1st. Looking back at rule 12(g), he realizes that he will lose his 12(b)(3) motion for improper venue if he does not consolidate it with his 12(b)(6) motion. On January 3rd, he moves to amend his original 12(b)(6) motion to combine it with the 12(b)(3) motion as a matter of course. Should the court allow the motion?

17. Technically, no. Rule 15(a) states that “a party may amend the party’s pleading once as a matter of course....” Thus, the issue is whether a motion is a “pleading” because only pleadings may be amended. Looking at Rule 7, “pleadings” are treated in rule 7(a), and are defined as the “complaint”, “answer”, “reply to a counterclaim”, “answer to a cross claim”, etc. It does not mention motions. Motions are treated in rule 7(b) which defines them as “an application to the court for an order.” Thus, technically, a motion is not a pleading and does not fall under Rule 15. However, it is likely that a court would see this as being an insignificant distinction and allow amendment anyway in the interest of efficiency and fairness.

18. Defendant is served with a complaint and answers it denying all allegations, except for his address. However, 10 days after he has filed the answer, he reconsiders and decides that the complaint is ambiguous and vague as to his address and makes a 12(e) motion for a more definite statement. How should the court rule on his motion?

18. Denied. A 12(e) motion must be made “before interposing a responsive pleading.”  Here, the defendant has answered (a responsive pleading to the complaint) before making the motion. This  rule makes sense because by responding, a defendant is impliedly admitting that it is not vague and unambiguous. 

19. May the defendant in question 18 cure the defective 12(e) motion?

19. No. The 12(e) motion may not be amended because it is not a “pleading.” However, even if the motion were amendable, there would be no way to amend it so that it came before the answer. Thus, the defendant forever waives the 12(e) defense once he answers. However, this is not a serious problem because he may still amend his answer under rule 15(a) as a matter of course because only 10 days have gone by. Thus, he can amend to deny or deny knowledge of the allegation of his address in the complaint, subject to the rule 11 restriction that the denial not be frivolous.

20. Assume that on day 1 process is served; on day 19 defendant serves a 12(f) motion to strike scandalous matter; and on day 40 the 12(f) motion is granted. How much time does the defendant have to serve an answer to the remaining part of the complaint?

20. The rules do not expressly provide for this situation. Specifically, Rule 12(a)(4)(B) provides that “if the court grants a motion for a more definite statement [12(e) motion] the responsive pleading shall be served within 10 days after the service of the more definite statement.” However, this appears to explicitly apply only to rule 12(e) motions. This is probably an oversight in the rules, and it is likely that the court would allow for 10 days after the 12(f) motion as well since they are both corrective motions.

21. Assume that on day 1 process is served; on day 19 defendant serves a 12(e) motion for a more definite statement; on day 40 the 12(e) motion is granted; on day 45 plaintiff serves the more definite statement, revealing for the first time possible grounds for a 12(b)(6) motion; on day 50 defendant serves the 12(b)(6) motion; and on day 75, the 12(b)(6) motion is denied. How much time does defendant have to serve an answer?

21. Rule 12(a)(4)(A) provides that if the “court denies the motion...the responsive pleading shall be served within 10 days after notice of the court’s action.” However, this only applies to “the service of a [one] motion permitted under this rule.” Thus, there is no explicit provision for a second extension of time. This is likely because the 12(g) consolidation requirement limits pre-answer motions to one only. Here, the 12(b)(6) motion was improper because it was made after the 12(e) motion, which satisfied the “one pre-answer motion” quota. Accordingly it was denied. Since 25 days have gone by since the plaintiff served the amended complaint, and rule 12(a)(1)(A) requires the answer to be given normally within 20 days, the defendant has apparently admitted all of the allegations of the complaint under rule 8(d) because “averments in a pleading to which a responsive pleading is required...are admitted when not denied in the responsive pleading.” This result makes sense because otherwise, a defendant could make improper pre-answer motions over and over again to buy time while the court denied them.

22. Plaintiff claims damages for a kettle that the defendant allegedly borrowed and cracked. The defendant pleads (a) that he did not borrow the kettle, (b) that it was not cracked, and (c) that it was cracked when he borrowed it. May these three alternative claims be allowable?

22. Technically, yes. Rule 8(e)(2) states that a party may “state as many separate...defenses as the party has regardless of consistency.” Of course, this is limited by the Rule 11 requirement that the “allegations and other factual contentions have evidentiary support, or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” This allows alternate conclusions to be pleaded when the party has no cause to know in advance the outcome of the case, but prohibits inconsistent facts from being pleaded if they are known to the party. There may be evidence that tends to show that the defendant bought the kettle rather than borrowing it, as well as evidence that it was cracked before he bought it as well as not cracked before he bought it. It may take further discovery to pinpoint when the crack occurred, and whether the purchase was valid.

23. What is the purpose of the general prohibition of replies to defenses set forth in Rule 7(a)?

23. Since the pleadings are for the purposes of general notice only, the policy is to proceed with the discovery and pre-trial hearing under 12(d) in order to narrow any legal or factual issues instead of having the action play out by defense and counter-defense ad infinitum in the pleadings. At the pre-trial hearing under 12(d), the π will have a chance to reply to the affirmative defenses of 8(c), as well as any 12(b) motion raised by the defendant.

24. Under what circumstances should the court grant an order to allow compel a reply from a party under Rule 7(a)?

24. Normally, this is only necessary if the defendant mislabeled one of his counter-claims as a defense. Since replies are only allowed by rule 7(a) to “a counterclaim denominated as such,” the court would give an order, on motion of the defendant, to compel a reply. If there were still time to amend the answer, the counterclaim could be properly relabeled. 

25. Phil sues Don, who moves under 12(b)(6) for failure to state a claim upon which relief can be granted. The motion is granted and the case dismissed, Don having never made an answer. There is no appeal. Then Don turns around and sues Phil on a claim arising out of the same transaction or occurrence as Phil’s earlier claim. Phil defends solely on the ground that Dan’s claim is precluded by his failure to interpose it as a counter claim in the first action. How should the court rule?

25. Under Rule 13(a), a “pleading shall state as a counterclaim any claim...if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” This word “shall” makes it compulsory that the counterclaim be brought. If a compulsory counterclaim is omitted, it may not be brought up in the same or a new action. Don never introduced a “pleading” (because motions are not pleadings in light of rules 7(a) and 7(b)), and so he didn’t fail to put his counterclaim in a “pleading.” The policy behind this rule is to promote efficiency in court actions, avoiding having to hear the same evidence from the same witnesses in two separate actions. Since the 12(b)(6) motion was granted so quickly, there would be no inefficiency here. Also, the 12(b)(6) motion only speaks to the adequacy of Phil’s complaint, it does not even consider Dan’s position, so there was no opportunity for Don to bring it up unless he answered before the motion. Don should not be penalized for Phil’s inability to state a valid claim.

26. What probably accounts for the dearth of cases on what constitutes the “same transaction or occurrence” for the purposes of rule 13(a)?

26. When a plaintiff brings suit against a defendant, the defendant is likely not to forget that he has a counter claim against the plaintiff. Also, he is probably not willing to wait until the plaintiff’s action is disposed of before he brings his own because that just costs him more time and money. If the defendant has a counter claim, (or even a cross claim under 13(g)), it is usually in his best interest to bring it immediately regardless of whether he would lose it later.

27. Which of the following scenarios would require a compulsory counter claim under Rule 13(a)?

A) P sues D for the balance due on an installment contract for the sale of a piano. D seeks to counterclaim for a battery by P’s representative while engaged in collecting the sum due.

B) P sues D for a battery occurring on May 17th. D seeks to counterclaim for a libel published by P about D on May 8th, with D alleging that the subsequent altercation was the result of the publication of the libel.

27. Under Rule 13(a), a “pleading shall state as a counterclaim any claim...if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” A convenient test for whether a claim “arises out of the same transaction or occurrence” is whether the same evidence will support or refute the opposing claims. The policy is that to promote efficiency, the claims should be handled together because they involve the same evidence and the same witnesses. In hypothetical A, the plaintiff’s case will require showing evidence of the existence of the contract, and the contract’s term as its basis. The D’s case will require this same evidence, since it is likely that a disagreement over the contract terms is what led to the battery. Also, the existence of the contract goes to show evidence of P’s employment of a representative. Thus, it is probably a compulsory counterclaim. In hypothetical B, a similar argument can be made.

28. Rule 18(a) states that a party (usually the plaintiff) “may” join several claims into the same action, whereas rule 13(a) states that  a party (usually the defendant) “shall” counter claim if the claim arises out of the same transaction or occurrence. Does this result in any undesirable inconsistency?

28. No. If the plaintiff, although he is not obligated to do so, does not bring all claims arising out of the same transaction or occurrence together in his original complaint, then he probably will be barred from asserting them later in a separate action under the judicially created doctrine of res judicata. That is to say that there is a independent judicially-created encouragement on the plaintiff’s joinder of claims, whereas there is an express rule (13(a)) which requires the defendant’s counterclaims. For example, a plaintiff may not bring an action for medical damages, and then bring a separate action for pain and suffering if they arise from the same occurrence. Thus, there is no imbalance in practice, and in fact, many jurisdictions do not have a rule requiring compulsive counter claims because the doctrine of res judicata serves to accomplish the same policy.

29. In Williams v. Robinson, a husband brought an adultery action against his wife and her boyfriend. The boyfriend answered, denying all allegations. While the case was still pending, the boyfriend brought a new action for libel and slander based on the husband’s allegations of adultery. The husband moved to dismiss, claiming that he should be barred from raising the libel action because it would have been a compulsory counterclaim in the original action, and he did not include it in his answer as required by rule 13(a). Since the original action is still pending, if the court rules for the husband (dismisses the separate case), how can the boyfriend recover? Similarly, if the court rules against the husband (allowing the separate case to proceed), how can the husband avoid the burden of maintaining two separate actions?

29. If the husband wins the dismissal motion, the boyfriend can not bring a separate action. However, rule 13(f) provides that “when a pleader fails to set up a counterclaim through...excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.” Thus, the boyfriend would be able to ask for leave of the court to amend his answer, since the original action is still pending. Because the question of whether the libel action arose “out of the same transaction or occurrence” could have gone the other way (and did in the actual case), justice would seem to require that he be allowed to amend his answer. If the husband loses the dismissal motion, he will be faced with maintaining two separate actions. However, he can move to have the separate trials consolidated under Rule 42(a). The standard for consolidation of 42(a) is that the actions involve “a common question of law or fact.” This appears to be more broad than the “same transaction or occurrence” standard of 13(a). Thus, the court would be likely to consolidate the two actions.

30. It has been suggested that the test of compulsoriness should be whether there is a “logical relationship” between claim and counterclaim (as opposed to the “same transaction or occurrence” of Rule 13(a)). What are the pro’s and con’s of this possible criterion?

30. A “logical relationship” test would be more broad than the “same transaction or occurrence” test of 13(a). As such, it would tend to make more counterclaims compulsory. If more counterclaims were compulsory, then more counterclaims would be brought, resulting in a decreased number of total lawsuits and perhaps more efficiency in the existing ones. However, if the two claims that had a “logical relationship” nevertheless required different evidence and different witnesses, then no efficiency would be gained. Furthermore, it would force a defendant, who may not be ready yet to bring the counterclaim, to bring it at the risk of losing it. This would tend to give more control to plaintiffs who could use the broader standard as a way to force the hand of the defendant.

31. What would be the consequence if the plaintiff failed to reply or move with respect to a counterclaim included in the defendant’s answer?

31. Counterclaims require a responsive pleading under Rule 7(a). Under Rule 8(d), the “averments in a pleading to which a responsive pleading is required...are admitted when not denied in the responsive pleading.” Thus, the allegations of the counterclaim would be admitted. In response, the defendant could move for default judgment against the plaintiff under Rule 55(b), because 55(d) provides that the provisions of default judgment of rule 55 “apply whether the party entitled to the judgment by default is a plaintiff...or a party who has pleaded a...counterclaim.” As one can see, the same consequences would apply to both the plaintiff and the defendant. A counterclaim is treated under the rules as reversing the roles of the parties with respect to that claim.

32. P sues D on contract A. D sets up in her answer a counterclaim on an unrelated contract B. P replies, denying that he committed any breach of contract B. The action, including the counterclaim, is tried and disposed of. Thereafter, P sues D for a breach of the contract B which occurred before he interposed his reply to D’s counterclaim in the first suit. D sets up a defense based on P’s failure to counterclaim in the first suit. Is P’s second suit precluded?

32. Yes. Under Rule 13(a), “a pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” The breach of contract B occurred before P replied to D’s counterclaim on contract B. Clearly, the two claims involve the same subject matter. Thus, since it was available “at the time” the counterclaim was made, it was a compulsory counterclaim, and is therefore lost since the previous action has been disposed of. Had the breach occurred after P’s reply to the counterclaim, but before the action had been disposed of, it would not be compulsory under 13(a), but P could made a supplemental pleading under 15(d) and combined his action in the existing one. Had the breach occurred after the disposal of the action, P might be allowed to bring it as a separate action, depending on what issues were decided against him in the first action (res judicata might still bar the second action if he lost the first one).

33. P serves a complaint on D on day 1. D responds by moving to dismiss for failure to state a claim under 12(b)(6) on day 5. P wishes to amend her complaint to overcome the 12(b)(6) motion, before the court has an opportunity to consider it and risk dismissing her case. May P amend on day 10 without asking the court for leave to amend?

33. Yes. Rule 15(a) provides that “a party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served.” As has been previously discussed, a motion is not a “responsive pleading” under rule 7(a). Thus, P may amend her complaint until an answer is served by D, without applying for leave of the court.

34. What factors should influence the court in granting or refusing to enter an amendment to the pleadings once leave of the court is required for amendment?

34. Rule 15(a) states that leave to amend “shall be freely given when justice so requires.” Since the role of the pleadings is general notice only, there are few reasons to refuse the entry of an amendment because the amendment would normally not have a significant influence on changing the scope of the action. The policy is to get to the merits of the case as opposed to being hung up on mere procedural technicalities. However, the second sentence of rule 15(b) provides for a situation in which the amendment will not be entered. That is when the opposing party has successfully objected to trial evidence which clearly goes outside of the scope of the trial, and he has been able to show that “such evidence would prejudice the party in maintaining the party’s action or defense upon the merits.”

35. P serves a complaint on D on day 1. P amends her complaint and serves the amended complaint on D on day 10. D moves 12(b)(6) to dismiss for failure to state a claim. Assuming that the complaint is in fact deficient, how should the court rule?

35. Rule 15(a) states that a party “shall plead in response to an amended pleading.” As has been stated, a 12(b)(6) motion is not a pleading. Thus, technically, a motion is not allowed in response to an amended pleading. However, this is probably an oversight in the rules. In the interest of efficiency and justice, the court would probably rule to dismiss the case rather than waste more time because of a technicality.

36. Rule 15(b) allows the opposing party to make a showing of prejudice in order to block the entry of an amendment by a party who is introducing evidence at trial which goes beyond the scope of his original pleadings. How would an opposing party make this showing (i.e. what would qualify as “prejudice.”)?

36. The opposing party can only block the entry of the amendment when the admission of such evidence “would prejudice the party in maintaining the party’s action or defense upon the merits.” Thus, a mere procedural inconvenience, such as the fact that the opposing party will have to make an answer, will not suffice. However, if the opposing party can show that the amendment will cause him significant delay, because he would be unable to prepare adequately in a short time, the amendment may be refused.

37. Rule 15 places no time limit on when a pleading may be amended with leave of the court. Why would an amendment of the pleadings ever be sought and allowed after judgment.

37. Rule 15(b) (first two sentences) provides that the pleadings shall be “treated in all respects” as amended if the party tries the case differently at trial than was indicated by the pleadings, and the opposing party does not object. It goes on to state that “such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made...at any time, even after judgment.” Thus, to avoid confusion if an appeal is taken, the party may amend his pleading after judgment to conform to the manner in which the case was tried.

38. A plaintiff who promptly recognizes that he omitted a claim may amend “as a matter of course” under 15(a). However, a defendant who promptly recognizes he has omitted a counterclaim must ask for leave of the court to amend under 13(f). What is the other significant difference between the plaintiff’s and defendant’s right to amend?

38. In Rule 15(b), last two sentences, the burden of proof for showing that entry of an amendment to a claim would be prejudicial is on the opposing party (the defendant). In contrast, in Rule 13(f), the moving party (the defendant) must show that his omitted counterclaim was due to “oversight, inadvertence, or excusable neglect.” Thus, the burden of proof is on the defendant (apparently) in both situations. Also, the standard of proof may be different between the two provisions.

39. Assume that the statute of limitations for personal injury actions is 2 years. In 1990, Victor was injured allegedly as a result of Donald’s negligence. In 1991, Victor brings a negligence action for personal injury. In 1992, Victor dies as a result of the injuries sustained in 1990. As a result, his son, Sammy, carries on the original negligence action as his executor, and asks for leave to amend to supplement the original complaint under 15(d) with an new wrongful death complaint in 1993. He argues that although the statute of limitations has run on bringing a negligence action for personal injury, that this new action should relate back to the filing of the original action in 1991. How should the court rule?

39. Technically, Rule 15(c) allows relation back when the “claim or defense in the amended pleading arose out of the conduct, transaction, or occurrence set forth...in the original pleading.” So it does not apply to 15(d) supplemental pleadings. This makes sense because supplemental pleadings concern events “which have happened since the date of the pleading sought to be supplemented.” However, in this case, that would operate to bar Sammy’s wrongful death action completely. Considering that the policy behind pleadings is to give general notice, and that the policy behind the statute of limitations is to bring actions while the evidence is still available and testimony is still fresh, the claim probably should be allowed to relate back for statute of limitations purposes. In particular, Donald already has notice that he is being sued for negligence because of the original action. The supplemental claim simply adds damages. Also, any evidence used for the supplemental claim would already have to be available in the original claim. Thus, justice seems to require that the claim relate back so as not to be precluded by a procedural technicality, even though it does not make sense logically that a claim for wrongful death relates back before the death. 

40. In an action based on negligence of the defendant in maintaining a skylight through which the plaintiff fell, evidence of steps taken to make the skylight more safe are generally inadmissible to show negligence. May the plaintiff nevertheless discover from the defendant what repairs to the skylight were made following the accident?

40. Yes. Under Rule 26(a),  Rule 26(b)(1) the “parties may obtain discovery regarding “any matter, not privileged, which is relevant.” The information sought “need not be admissible” if it is “reasonably calculated to lead to the discovery of admissible evidence.” Thus, even though evidence of remedial measures is inadmissible to prove negligence under evidence rule 407, it may still be discovered because it is relevant and reasonably calculated to lead to the discovery of admissible evidence. For instance, the state of repair of the skylight before plaintiff fell though. Also admissible to show ownership.

41. In an action for alleged violation of federal antitrust laws, plaintiff during discovery refuses to answer (a) questions concerning the circumstances surrounding the bringing of the suit, including possible unethical financial arrangements between plaintiff and his counsel for bearing the costs of this litigation, and (b) questions concerning the plaintiff’s net worth, including his ability to satisfy a judgment for costs if defendant were to prevail in the action. Defendant moves to compel answers. What should be the decision?

41. As to part (a), the financial arrangements between the plaintiff and his counsel appear to be “privileged” information, and thus exempt from discovery under 26(a). Also, with regard to part (b) the ability of the plaintiff to satisfy a judgment for costs if he loses appears to be irrelevant to the “subject matter involved in the pending action” (the violation of antitrust laws) and thus likewise exempt from discovery under 26(a). However, one must consider that one policy behind discovery is to aid a party in establishing his own contentions.  Another is to prevent surprises at trial. Since discovery of the defendant’s insurance is discoverable, perhaps the plaintiff’s “insurance” should be as well. Still, there are valid privacy concerns, and most courts generally deny this discovery.

42. Do the extra provisions of 26(a)(1)(D) for insurance, 26(b)(3) for trial preparation materials, and 26(b)(4) and 26(a)(2) for expert witnesses limit or broaden the general scope of discovery of 26(b)(1)?

42. With regard to the insurance provisions, although evidence of insurance is generally not admissible with regard to the ability of the party to pay, it is admissible under evidence rule 411 to show ownership and establish agency. Thus, although it superficially appears to broaden the general scope of 26(a), it probably does not because it is already “reasonably calculated to lead to the discovery of admissible evidence,” namely ownership. With regard to trial preparation materials (or “work product”), 26(b)(3) states that they are discoverable “only upon a showing [of] substantial need” and that the party “is unable without undue hardship to obtain the...materials by other means.” Thus, this subsection limits the general scope, because this material would be “otherwise discoverable under subdivision (b)(1)” if not limited by need. This prevents the inhibition of communication between attorneys and rewards hard work. With regard to expert witnesses, 26(b)(4) and 26(a)(2) carve out an exception to the previously mentioned “work product” limitation because discovery is allowed. It may even be a slight expansion of the scope because the expert witness is not a “fact” witness, meaning he is not one of the parties of 26(a)(1)(A) who is “likely to have discoverable information relevant to the disputed facts.”

43. Why is the Rule 35 Physical Examination the only discovery device that requires the discovery party to make a motion to the court “for good cause shown?”

43. Discovery is supposed to proceed automatically without the intervention of the court. However, since a Rule 35 physical examination is an intrusion into the privacy of the party, if it were not regulated by the courts for “good cause shown,” then it would be have great potential for abuse in order to coerce an adverse party into dropping a claim.

44. Why should the deposing party be required to obtain leave of the court under Rule 30(a) in order to take an oral deposition of a party or a non-party if there are more than ten total depositions already taken, the person has already been deposed, or the deposing party seeks to take a deposition before the discovery conference?

44. The rules of discovery are very liberal. However, there must be limits on them to prevent abuse. The limits enumerated in 30(a)(2)(A)-(C) prevent a discovering party from harassing the other party into submission. If there are more than 10 depositions already taken on various parties, a question of necessity arises. Similarly, if the person has already been deposed, even by the other party, their information is available (can get a written copy under Rule 34). Also, a person seeking to take a deposition before a discovery conference of rule 26(f) should have a good reason for upsetting the schedule and order of things, otherwise there would be no need for the scheduling function performed in 26(f).

45. What may an examining party do regarding a deponent who has been advised by an opposing party not to answer or who herself refuses to answer?

45. Under Rule 37(a)(2)(B), the discovering party may “move for an order compelling an answer” if the discovering party certifies that he has “in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action.” If the person fails to comply with the order, sanctions under 37(b) may be imposed. These include that the “designated facts shall be taken to be established,” “refusing to allow the disobedient party to support or oppose designated claims or defenses,” “striking out the pleadings,” or dismissing the action altogether. Counsel advising unreasonable action may be obliged to pay fees under 37(a)(4).

46. Rule 30(d) provides for protection of the deponent or party from bad faith or harassing questions during the deposition. Under what circumstances may a party (or the deponent) seek protection against the deposition before the stated time for the appearance of the deponent?

46. The limits of Rule 30(a), which provide protection for excessive or early depositions, provide a reason for the deponent to seek protection before the stated time of the deposition.

47. In a Rule 30 deposition upon oral examination of the plaintiff, which of the following questions would be proper? Which would be proper in a Rule 33 Interrogatories to Parties?

A. What facts do you contend to show that British Airways did not properly treat you?

B. Do you intend to rely on res ipsa locquitur?

C. What facts do you contend constitute negligence?

D. Are the premises under your control or ownership?

E. Under what circumstances do you claim that res ipsa locquitur is appropriate in this jurisdiction?

47. Rule 30 depositions do not allow application of facts to law. Although this is not explicitly stated, it follows from the structure of the rules and case law. Specifically, Rule 33(c) provides that “an interrogatory otherwise proper is not necessarily objectionable merely because and answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact.” However, there is no correlative provision in Rule 30. Also, a deposition is not traditionally the appropriate manner to get the legal position of the other party, because he is generally a layman with limited understanding of the law. However, with interrogatories to parties, the opposing counsel may help the party prepare answers. Thus, only question A is proper in a Rule 30 deposition, because the rest require either application of law to fact, or are pure law. Rule 33, although it allows questions which apply law to fact, (and thus, statements of the legal theory relied upon) does not go so far as to encompass questions of pure law. These would infringe on the “core” work product of the attorney which is protected by 26(b)(3) and Hickman v. Taylor. Thus, questions A-D are allowable, but E is not because it is a question of pure law.

48. Suppose there is no stipulation to waive the signing of the transcript by the deponent at a Rule 30 Deposition by Oral Examination, and the deponent refuses to sign it. What effect does this have?

48. Not much. The signing is only used as a means of demonstrating authenticity. Since the deposition was taken under oath, and in front of several witnesses (usually the parties’ attorneys), it is not difficult to prove that it is authentic.

49. If a party is served a Rule 33 Interrogatories to Parties, he shall answer each question unless it is objected to, in which event the party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable. What is the effect of failing to answer the question or object to it (i.e. leaving it blank or being evasive in the answer or objection)?

49. Rule 33(b)(4) states that “Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown.”

50. Application of law to fact under Rule 33(c) encompasses asking the party “contention” interrogatories, such as “do you intend to rely on res ipsa locquitur?” How binding on the party who answers this interrogatory should his answer be? 

50. The policy behind allowing “contention” discovery in rule 33(c) is to narrow the issues, and allow an opponent to set up proper defenses/claims. Since the pleadings are for general notice only, the discovery portion should be more binding than the pleadings. Thus, the answer given should be more binding than an allegation stated in a pleading (which, of course, can contain multiple inconsistent allegations under rule 8(e)). However, rule 33(c) also states that “the court may order that such an interrogatory need not be answered until after designated discovery has been completed,” implying that many of the answers may need further discovery. Thus, a party should not be conclusively bound to an answer to a Rule 33 interrogatory, especially if it is made early in discovery. Rule 15(b) indicates that a party may change his legal theory at trial and amend the pleadings accordingly, so it is likely that a good faith change in legal theory can occur at trial even if the Rule 33 interrogatory contradicts it. Also, the contradiction could be used at trial to impeach the party, so a change of position is not completely adverse to the opposing party. Where there is a conflict between trial and interrogatories, they can be resolved by the jury. Freed v. Erie Lackawana Ry.

51. How does the answer to a legal theory discovery question under Rule 33 differ from that under Rule 36?

51. An answer to a Rule 36 request for admission is “conclusively established” under Rule 36(b), whereas the answer to a rule 33(c) interrogatory can be changed in good faith. Also, Rule 36(a) requires that the answering party “may not give lack of information or knowledge as a reason for failure to admit or deny” without making “reasonable inquiry.” In contrast, a Rule 33 interrogatory puts no such burden on the party.

52. A lawyer lecturing at a meeting of the Federal Bar Association said that he thought “the best time to file a request for admissions is at the same time the complaint or answer is filed because the opponent has not had time to figure out his litigation strategy.” What do you think of this suggestion?

52. First, according to 36(a), the request for admission may not be filed until after the discovery conference of 26(f). Second, 36(a) also provides that even though an answer is required in 30 days (under penalty of admission), the party may still object to the question and state that “the information known or readily obtainable by the party is insufficient to enable to the party to admit or deny.” Thus, this tactic is of very limited use.

53. Requests under Rule 34 can be addressed only to parties. Suppose a document or thing is under the control of a non-party. How can its production for discovery be compelled?

53. A party may request document from a non-party by means of a subpoena duces tecum under rule 45(d) and 45(a)(1)(C).

54. If a discovering party delivers the medical reports resulting from the conduct of a Rue 35 Physical Examination of a party, what does she become entitled to?

54. Rule 35(b)(1) provides for the swapping of medical reports between parties of examinations of the same condition. Thus, the plaintiff’s doctors’ reports are available to the defendant, and vice versa. Rule 35(b)(2) provides that in doing so, the party waives and privileges it had concerning any of those medical examinations.

55. In Schlagenhauf v. Holder, one of the defendants requested a physical examination of another one of the defendants. What possible defect in Rule 35 does this fact pattern expose?

55. The Rule 35 standards for requesting a physical examination of a party require that the subject’s physical condition be “in controversy” and that “good cause” is shown by the requester. In Schlagenhauf, both of these requirements were met. Rule 35 does not require that the party requesting the physical exam be an adverse party (i.e. on the opposite side of a claim) to the party who is to be the subject of the examination. Thus, as Justice Douglas points out in his dissent, there is a potential for “blackmail” if the rule is used between defendants. 

56. In Identiseal Corp. v. Positive Ident. Sys. (1972), the judge at the pre-trial conference dismissed the case for want of prosecution. Specifically, the plaintiff had refused to conduct much discovery, instead claiming that it was in his client’s best interest to have the facts come to light at trial. The court of appeals reversed, stating that Rule 16 did not give the judge the authority to compel a party to conduct discovery, only to “consider the possibility” of discovery that will avoid unnecessary proof. Is Identiseal still good law given the amendments to Rule 16 which tend to make the pretrial conference more coercive?

56. Yes. New rules 16(c)(16) (which provides that the court may take actions that will “facilitate the just, speedy, and inexpensive disposition of the action”), 16(c)(6) (which provides for the control of the “scheduling of discovery, including orders affecting disclosures”), and 16(f) (which provides sanctions if the party or a party’s attorney “ or  “is substantially unprepared to participate in the conference,” or “fails to participate in good faith”) all convey a stricter, more coercive pretrial conference. However, they are probably not enough to change the outcome of Identiseal, because the “good faith” lack of participation that was in Identiseal is still protected. Also, there has been no express language compelling a party to conduct discovery, especially if it is not in his best interest to do so.

57. A pre-trial conference results in a pre-trial order under 16(e) which, in effect, supersedes the pleadings to the extent that the parties stipulate to the facts and legal theories contained therein. It also provides for modification of this order only to prevent “manifest injustice.” How does this differ from the plaintiff’s right to amend his pleadings under Rule 15(b)?

57. Rule 15(b) requires the opponent to show “prejudice” to prevent the plaintiff from amending his pleadings at trial. However, 16(e) requires the party itself to show “manifest injustice” in order to have the pre-trial order modified. Thus, the burden of proof is reversed, and the standard of the showing required is much higher. A party must be careful what he stipulates to at a pre-trial conference, but failure to stipulate when reasonable could result in a partial summary judgment as to that fact or issue because 16(c)(11) give the judge the power to rule on pending motions at the pre-trial conference, or even make his own motion under the power of 16(c)(16).

58. P files a complaint attempting to allege defamation. D answers, admitting P’s factual allegations as to the statement in question and attempting to assert the defense of immunity on the ground that the statement was pertinently uttered in the course of judicial proceedings. If D moves for judgment on the pleadings under 12(c), what are the facts and legal issues for purposes of the motion? If P also moves for judgment on the pleadings under 12(c), what are the facts and legal issues for the purposes of his motion?

58.  Under 12(c), for the purposes of the motion, the allegations in the opposing party’s pleadings are taken as being admitted, and the allegations of the moving party’s pleadings are taken as admitted only if they were expressly admitted by the opposing party. As a consequence, a defendant’s 12(c) motion does not concern the affirmative defenses raised in his answer because these have been impliedly taken as denied under rule 8(d) (allegations in a pleading to which no responsive pleading is allowed are taken as denied or avoided). Thus, the facts for D’s motion would be that the words were spoken, but the only legal issue is whether these facts would be sufficient to state a claim. Thus, the 12(c) for the defendant is ordinarily only equivalent to his 12(b)(6) motion. As to P, the facts would be that the words were spoken (because this was expressly admitted by D), and that the words were spoken during judicial proceedings (because this is taken as admitted for the purposes of the motion). The legal issue is whether the defense of immunity is adequate. Thus, the 12(c) motion for the plaintiff operates similarly as the 12(f) motion to strike an insufficient defense, EXCEPT that the 12(c) motion would then result in total victory instead of having to first strike the defense, and then move 12(c). 

59. Suppose that instead of admitting P’s factual allegations, D denies them and also attempts to assert the defense of immunity. What relief can P get if the immunity defense is insufficient as a matter of law? In what manner may P pursue that relief? Does it matter how much time has elapsed since service of D’s answer?

59. P can bring a motion under 12(f) to strike the defense if he brings it within 20 days after service of the answer. Alternatively, P could bring a 12(c) motion, but it would not result in total victory this time because D has denied that defaming words were spoken, thus putting that fact into controversy. A 12(c) motion can not be used to resolve questions of fact, only questions of law. Thus, a 12(c) motion at this point would only result in the determination that the immunity defense was insufficient as a matter of law. This is not total victory, but it is partial victory. P would still have to prove that the defaming words were spoken. If 20 days has elapsed,  12(f) expires. However, the 12(c) motion could still be brought because it is preserved by operation of 12(h)(2) (“failure to state a legal defense” can be brought by “motion for judgment on the pleadings” up until “trial on the merits.”). Thus, 12(c) has another advantage in that it can be used in place of a late 12(f).

60. Would you expect summary judgment under Rule 56 to be granted often in favor of plaintiffs in actions based on charges of negligence?

60. No. Although Rule 56 allows consideration of facts outside the pleadings, it can not be used to determine a fact in dispute unless no “reasonable jury” could find otherwise. Since negligence is a mixed question of law and fact (i.e. the facts can be determined, but whether those facts constituted negligence is for the jury) it is often left to the jury. An exception would apply if the basis for the charge is negligence per se. In such a case, negligence would be a question of law, not fact, and thus ripe for summary judgment. 

61. Even in a case of negligence per se, why might a judge refuse to grant a motion for summary judgment under rule 56 if the plaintiff has established the facts apparently sufficient to find negligence as a matter of law?

61. Many judges will refuse to enter summary judgment in this case because the scope of review on appeal (as to the non-discretionary finding of negligence as a matter of law) will be very broad, and require a full re-examination of the facts by the court of appeals. If the judge actually believes that there is negligence per se, he might still deny the summary judgment motion in order to let the jury make the finding. Then, on appeal the scope of review as to the facts will be limited because the jury has decided the facts. Although denying the summary judgment at trial appears to be inefficient because it results in a trial where there should be none, it is good insurance against reversal on appeal, which would result in a whole new trial anyway.

62. May a Rule 56 motion for summary judgment be used in place of a 12(b)(6) motion for failure to state a claim? May it be used in place of a 12(f) motion to strike an insufficient defense?

62. Yes to both. Under rule 56(b) a defendant may bring a motion for summary judgment “at any time...with or without supporting affidavits.” Thus, he does not have to wait until the pleadings are closed (as is the case with a 12(c) motion). The benefit of bringing a 56(b) motion instead of a 12(b)(6) motion is that it can serve as a single step for total victory. This is because a 12(b)(6) motion merely negates a claim; the party using 12(b)(6) must then also use 12(c) to get a judgment. Similarly for the plaintiff, a 56(a) motion may result in total victory (like the 12(c) motion) instead of first striking the defense under 12(f) and then moving for judgment on the pleadings. Thus, a rule 56 motion for summary judgment is more powerful than the 12(c) motion for judgment on the pleadings because it can be brought before the close of the pleadings, and it can allow facts outside of the pleadings to be considered. This is why both the 12(c) and 12(b)(6) motions will convert to rule 56 motions if they require consideration of facts outside of the pleadings.

63. Why would a party ever use Rule 12(c) in preference to Rule 56? 

63. A party would only use Rule 12(c) if he wanted to obtain judgment without allowing his opponent to bring in evidence outside of the pleadings. (Note that a rule 56 motion for summary judgment does not have to be accompanied by affidavits, but it usually does). However, the court could deny the motion if it felt that more evidence than what was reflected in the pleadings was needed to adjudicate the merits properly. 

64. How is summary judgment ever properly granted by a judge where the case is of a type in which trial by jury is guaranteed by the 7th amendment and proper demand for a jury has been made?

64. There is not an unconstitutional abuse of power if a judge enters summary judgment because by doing so, he is concluding that there is no genuine issue of fact for the jury to decide. If there is no fact in dispute, then no jury is needed. The standard used is whether a “reasonable jury could find for the opponent on the matter.”

65. Rule 65(b), (c), and (d) place strict limitations on the issuance and duration of a temporary restraining order. Why were they deemed necessary?

65. Rule 65(b) requires that the TRO only be granted if there is 1) “immediate and irreparable injury”, and 2) there has been a sufficient effort to notify the defendant. This is required in order to protect the due process rights of the person against whom the TRO is being granted, because they have a right to be heard. Also, it is only good for 10 days. This limits the length of the “taking” to minimize the damage to the party if the TRO is improvidently granted. 65(c) requires the requester to post a bond “for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained,” thus guaranteeing the losses of the opposing party. Also 65(d) requires that the TRO be binding only on the party or his agents or those with actual notice, so as to restrict the scope of the TRO to its narrowest form. These are all required to prevent deliberate or even inadvertent abuse of the TRO because its impact on the rights of the restrained party is great.

66. What should be the standard for granting a preliminary injunction?

66. The judge’s goal should be to minimize the effect of a mistake in the decision of whether to grant the injunction or not. As such he should consider:
1. irreparable harm to the π. (damages insufficient)
2. harm to the ∆ (whether π’s bond is adequate to cover)
3. π’s likelihood of success on the merits
4. public interest in the injunction (third parties, etc.)
Some cases, e.g. American Hosp. Supp. Corp. v. Hospital Prod., Ltd. have attempted to reduce these guidelines to a mathematical formula similar to the Carrol Towing cost/benefit formula. However, this has been criticized as reducing a determination that should be made by “feel” of the facts to a rigid “straitjacket.”

67. Springville v. Thomas and American Publishing Co. v. Fisher are both Supreme Court decisions given in 1897 that hold that unanimity of the jury is required in federal civil cases under the 7th amendment, which states that “jury trial right is preserved as at common law.” How might one argue that these cases are ripe for overruling?

67. The more recent case of Colgrove v. Battin concerned the size of a jury in a federal civil case. In order to reach the conclusion that the size of the jury could be less than 12, the court relied upon Williams v. Florida which held that a criminal jury of less than 12 members in a state case was constitutional. The importance of size was seen to be a number large enough to facilitate group discussion combined with a likelihood of obtaining a representative cross-section of the community. An analogous argument can be made with respect to the decision in Apodaca v. Oregon, which held that a non-unanimous 12-person jury in a state criminal case passed constitutional muster, only a “substantial majority” was needed. Thus, by the same reasoning, anon-unanimous jury could be constitutional in a federal civil case. However, this would mean that there could be a non-unanimous verdict in a federal civil trial with less than 12 jurors. There is case law indicating that a non-unanimous, non-12 jury is unconstitutional, at least when the size of the non-unanimous jury is 6 (Burch v. Louisiana). Policy reasons for wanting unanimous verdicts are that there would be more confidence in the verdict because it is the result of group deliberation, rather than the disregarding of one minority juror. The cross-section of the public rationale is defeated if people can be disregarded.

68. Judgment entered on a motion for judgment as a matter of law under Rule 50(a) is taken to be an adjudication on the merits. If the court believes that the motion is persuasive (that the burden of proof has not been met by the plaintiff) but feels that an adjudication on the merits would unfairly punish the plaintiff, what option does the court have to terminate the proceedings without adjudicating on the merits?

68. The judge, instead of granting the 50(a) motion for judgment as a matter of law, may allow the plaintiff to move for a voluntary dismissal under Rule 41(a)(2). Such a dismissal is treated as “without prejudice.”

69. Why is there a different standard of decision for a judgment as a matter of law under Rule 50(a) and a motion for judgment on partial findings under Rule 52(c)?

69. The standard of Rule 50(a) applies to the judgment as a matter of law in a jury case. As such, the standard is whether a “reasonable jury could find for that party on that issue.” This high standard is required in order to preserve the 7th amendment guarantee of the right to a jury trial. In contrast, the standard of decision in Rule 52(c) judgment on partial findings is whether the action can be maintained without a favorable finding on that issue. Rule 52(c) properly assumes that the finding has already been made by the judge. This makes sense in a non-jury trial; there is no need for the judge to state that no reasonable trier of fact could find for the party because the judge is the trier of fact. 

70. How does the standard of review on appeal differ between an action that was adjudicated by a Rule 50(a) judgment as a matter of law, and a Rule 52(c) judgment on partial findings?

70. Since the judge was sitting as the trier of fact in a non-jury trial, a Rule 52(c) judgment on partial findings is subject to a very narrow scope of review on appeal. The standard applied is whether the judge’s ruling was “clearly erroneous.” In contrast, in a jury trial where the judge has entered judgment as a matter of law under 50(a), the trier of fact has not made any findings. The judge has taken the case from the jury. As such, the scope of review on appeal is much broader.

71. Consider the admissibility under the Rules of Evidence of the following statements by an ordinary lay witness who was a bystander to the automobile accident at issue in a personal injury suit: 

A. “The defendant’s car was going 30 miles per hour” (or “about 30 miles per hour”)

B. “The defendant’s automobile was going very fast” (or “too fast”)

C. “The road was very slippery.”

D. “The plaintiff was drunk.”

E. “The defendant was driving the automobile in a very negligent manner.”

71. Rule 701 covers the admissibility of opinion testimony by lay witnesses. It provides that the opinions are only admissible if they are “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” Thus, the “too fast” language of statement B is not admissible because it is legally conclusory. A legally conclusory statement is not “helpful to...the determination of a fact in issue.” Likewise, the “negligent” language of statement E is not admissible because it is also legally conclusory and thus not “helpful.”

72. If a judge erroneously upholds a witness’s privilege based on doctor-patient relationship and excludes testimony concerning the witness’s statements to his doctor, and the defendant would have been benefited had the statements been admitted, can the defendant appeal? What if the judge erroneously denies the privilege and the testimony hurts the defendant - may he then appeal?

72. In the first instance, the judge’s mistaken upholding of the privilege prejudiced the defendant, so he can appeal the ruling. However, when a judge erroneously denies a privilege, the defendant may not appeal because he is not the “holder” of the privilege and so was not prejudiced by the denial. The witness would be the one damaged by a denial of a privilege because he is the holder.

73. P sued by Dr. D for negligence in leaving a sponge in the incision after operating on P’s spine. Several doctors had operated on P’s spine at various times prior to the discovery of the sponge. To establish liability it was necessary to prove (a) that a sponge was left in the incision by Dr. D and (b) that it was left there as a result of Dr. D’s failure to exercise proper skill and care. Among other evidence, P offered testimony by an assisting physician W, that in the operating room an unidentified nurse told Dr. D that “the sponge count did not come out right.” This testimony was excluded on the ground that it was hearsay. Was the decision to exclude correct?

73. The testimony of the attending physician is not really hearsay. The definition of hearsay under Evidence Rule 801(c) is an out of court statement “offered in evidence to prove the truth of the matter asserted.” Here it is not being offered to assert the truth of the matter asserted, which is that the sponge count did not come out right. It is being offered as proof of the mental state of Dr. D. Specifically, it is being offered to show that Dr. D was aware of a possible problem with the sponge count and did not make any effort to investigate. Thus, the evidence could be admissible. However, the judge would still have broad discretion to exclude it under Rule 403. In this case, the probative value of the evidence to prove the mental state of the doctor might be outweighed by the danger that the jury would use the statement for the wrong purpose (i.e. to determine that the sponge count actually came out wrong).

74. What is the justification for the exception to the hearsay rule regarding out of court admissions by a party-opponent in 801(d)(2)?

74. A party is presumed to be acting in his own best interest. As such, any statements he makes which are detrimental to him are presumed to be true because people do not normally fabricate harmful lies about themselves.

75. What is the justification for the exception to the hearsay rule regarding “excited utterances” in 803(2)?

75. When a person makes an excited utterance under the “stress of excitement caused by [an] event or condition” he is presumed to not have had the ability to fabricate a lie because of the stress. 

76. In a civil wrongful-death action brought in federal court by X’s wife against K, W is called by plaintiff to testify that W saw X and his wife walking together, that X fell, that W ran over, that X was then dead, and that W heard X’s wife cry, “X just groaned that K hadn’t joked in telling him that K had poisoned him.” Can the quoted testimony come in over objection?

76. This is a case of multiple hearsay. The testimony must be broken into its various levels of hearsay. First, X says that husband said “....” Since X is not testifying (W is) it is hearsay. However, this can be overcome by the excited utterance exception of 803(2) or the present sense impression of 803(1). That is to say that X either did not have the time or the ability to fabricate a lie as to what her husband said. Second, the husband said that K said “....” Since the husband is not testifying, it is hearsay. However, this can be overcome by the dying declaration exception in 804(b)(2) because the husband is not available (he’s dead). Lastly, K said “....” Since K is not testifying, it is appears to be hearsay. However, this is not really hearsay because admissions are not hearsay under 801(d)(2). Thus, there is an exception for every level of hearsay, and the evidence is admissible.

77. At the close of evidence, suppose (a) P seeks a jury instruction that a lost profits are recoverable under the disputed contract, and the judge refuses; (b) P makes no request but the judge gives and instruction that lost profits are not recoverable; (c) P makes no request and the judge does not make specific reference to the matter of lost profits. In case (a), what must P’s attorney do next if she thinks the judge is in error on the law and if she wants to preserve the point for appeal? Has she lost appeal rights in case (b) or (c) by not requesting an instruction?

77. Rule 51 states that “No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict.” This indicates that P’s attorney must object to the failure to give her instruction. As to case (b) and (c), Rule 51 also states that any party “may” (permissive) file written requests for instructions. This indicates that it is not mandatory to do so. Thus, even if the no request is made, P’s attorney may still object to the instructions, or failure to give an instruction.

78. Suppose the judge directs a verdict (i.e. grants judgment as a matter of law under 50(a)) at the close of all the evidence, and the appellate court later decides that she was wrong and that the case should have gone to the jury. What happens after that?

78. A new trial must be conducted because the jury that it would have went to is no longer present. This means that a new jury must be selected and hear all of the same evidence again.

79. Suppose the judge instead denies the defendant’s motion for a directed verdict, submits the case to the jury, and, after a verdict for plaintiff and on defendant’s motion, enters judgment notwithstanding the verdict under 50(b). The appellate court later finds error in entering the judgment n.o.v. What then happens?

79. The judgment is reversed and the original jury verdict reinstated. There is thus no need for a new trial.

80. What is the difference in practical result between (a) judgment as a matter of law under 50(a) or judgment n.o.v. under 50(b) and (b) setting aside a verdict for the plaintiff and ordering a new trial under rule 59?

80. In a 50(a) or 50(b) motion, the movant wins. The possibility of a new trial is slim under 50(a) and even slimmer under 50(b). However, setting aside the verdict and ordering a new trial under rule 59 is not a victory. It is merely the lack of a defeat. The plaintiff will have to start all over again.

81. How does the standard for ordering a new trial under rule 59 on the ground that the verdict is against the weight of the evidence compare with the standard applied under rules 50(a) and 50(b)? May a party’s new trial motion on such ground ever properly be granted when the same party’s motion for a directed verdict and judgment n.o.v. have properly been denied?

81. The standard of decision of Rule 50(a) and 50(b) is that of a “reasonable jury.” The judge must deny the motion if it is within the realm that a reasonable jury might conclude for the opponent. However, the “against the weight of the evidence” standard of 59 is a lower standard. With the rule 59 standard, the judge may make a personal quality judgment about how he would rule, and need not consider whether the reasonable jury might differ with him. However, this is not a problem since the judge’s granting of the rule 59 new trial is not a victory for either side. Note that the judgment n.o.v. is typically denied when granting the new trial.

82. Rule 57 regarding declaratory judgments states, “The existence of another adequate remedy does not preclude” a declaratory judgment. What does this mean and why is it provided?

82. “Another adequate remedy” refers to the existence of a remedy at law such as monetary damages. Since declaratory judgments are equitable judgments, this is necessary to prevent a legal remedy from being barred if the litigated event actually occurs and the party who had the declaratory judgment made in their favor need to sue for damages. 

83. What is the meaning and purpose of the opening clause of §2201(a) which states that the declaratory judgments may be given “In a case of actual controversy?”

83. Article II, section 2 which grants the federal judiciary power refers to “controversies.” Thus, in order to avoid overstepping its constitutional limits, the judiciary can only enter binding judgments in cases of “controversy” so that it does not perform the legislative function. Also, declaratory judgments are not merely advisory opinions. They have precedential weight with “the force and effect of a final judgment.” Thus, they must focused on a particular set of facts to generate focused legal opinions. Also, this prevents overloading of the system with cases that are only hypothetical and leaves room for the cases that actually require adjudication.

84. What are the arguments for and against generally limiting the right of appeal to final decisions?

84. Some have argued that appeals should be granted where the decision affects a “substantial” right. However, the finality requirement promotes efficient use of appellate resources. Many appeals would become moot because the substantial right affected may not alter the final outcome of the case (i.e. denied motion to dismiss may be mooted by later successful motion for summary judgment). Also, the judge is more often right than wrong. Also, the opponent may appeal for delay/harassment. It also helps the quality of decision making of the judge because he knows that his decision will stand. Arguments against are that it wastes trial court resources. Some cases could have been avoided if dismissed early on appeal. Also, this gives the trial court a lot of power, which leads to carelessness if not reviewed.

85. In Russell v. Barnes Foundation, the court held that the defendant in a personal injury case could not appeal a grant of summary judgment against him on the issue of liability, because the issue of damages had yet to be determined (thus not a final order under 1291). Would the result be different if the summary judgment were granted in the defendant’s favor instead? What if there were two defendants and the summary judgment had been entered in favor of only one of the defendants?

85. 28 USC 1291 provides that “final” decisions are appealable. Since a summary judgment in the defendant’s favor is a “final” decision (i.e. complete victory for the defendant), the plaintiff could have appealed immediately. In the case of multiple parties, Rule 54(b) allows appeal from a “final judgment as to one or more but fewer than all of the claims or parties” provided that the judge makes an express determination that there is “no just reason for delay.” (Magic words).

86. 28 USC 1292(a)(1) provides a right of appeal from certain “interlocutory” orders. These are ones which “grant, refuse, modify or otherwise affect injunctions.” Why are these particular interlocutory orders singled out for appeal of right?

86. These order affect substantial rights of the parties involved and normally do irreparable harm if they are delayed or erroneously granted or denied. Thus, they deserve a special right of appeal even though they are not “final” in a technical sense.

87. The plaintiff you represent has won a money judgment of a type to which neither rule 62(f) nor rule 62(h) applies. The defendant made no post-judgment motions, but she did file a notice of appeal on the 30th day after entry of the judgment, in accordance with the App. Rule 4(a). On that same day, the defendant gave a supersedeas bond and the district court approved it. The appeal is still pending. When could you have executed? What could the defendant do to foreclose such a possibility?

87. Rule 62(a) provides for an automatic stay of enforcement of judgment of 10 days. Rule 62(d) provides that a stay of judgment on appeal is made when the appellant posts the bond. However, since App. Rule 4(a) allows 30 days to appeal, the plaintiff could have recovered in the 20 days between the expiration of the automatic stay and the time the defendant posted bond. To foreclose such a possibility, the defendant could have posted bond for appeal within the 10 day automatic stay time period. However, he would have had to already filed for appeal, or procured the order allowing appeal. 

88. Under what circumstances might the winner of a federal case still seek certiorari from the Supreme Court under §1254?

88. An example is when the government has lost a previous case on the same point in another district court. For instance, if the government previously lost in the 2nd circuit, but has now won in the 9th circuit, it may seek certiorari to establish uniformity among the circuits.

89. What is the difference in the type of review performed by the federal courts of appeal and the Supreme Court?

89. The federal courts of appeal perform mostly “correctness” reviews to enhance the quality of decision making. This implies that a person can go from a trial court to the court of appeals as a matter of right. It also implies that different judges from the ones who decided the case should review the case. In the Supreme Court, the reviews are mostly “institutional” reviews to perform the “lawmaking” function needed for uniformity. That implies that only important issues should be reviewed. It also implies that only one court should perform the review.

90. In Lousiville v. Mottley, the plaintiff’s case was ordered dismissed for lack of subject matter jurisdiction because the federal question on which jurisdiction was based did not appear “on the face of the well pleaded complaint.” It was only the defense of a federal statute that raised the federal question. Suppose the action were instead structured as one for a declaratory judgment under a statute analogous to the present 28 USC §2201 with the railroad as plaintiff seeking a declaration of its obligation in light of the statute prohibiting free passes. Would federal question jurisdiction then exist?

90. Yes. In such a case, the federal question would then appear on the face of the well pleaded complaint because the roles would be reversed. This illustrates the procedural inefficiency of this rule when there are no disputed issues of fact. However, the policy for limiting federal question jurisdiction to the well pleaded complaint prevents unnecessary use of federal resources if the complaint were dismissed, as well as prevents the defendant from controlling the subject matter jurisdiction. Note that if the defendant were to fail to put the defense in his answer, the court could not even issue a default judgment because of lack of subject matter jurisdiction.

91. Does the required diversity of citizenship under 1332 exist in each of the following cases? Imagine each case is for an alleged vehicular tort occurring in Kansas City, Mo. The matter in controversy exceeds $50,000:

A. P, a citizen of New York, sues B, a citizen of Missouri.
B. P, a citizen of New York, sues B, a citizen of England.
C. P, a citizen of Canada, sues B, a citizen of England.

91. 28 USC §1332(a)(1) provides that the district courts shall have original jurisdiction in all civil actions where the case is “between citizens of different States.” Thus, the diversity is present in situation A. §1332(a)(2) provides for actions “between citizens of a State and citizens or subjects of a foreign State.” Thus, the diversity is present in situation B. However, no provision of §1332 provides for subject matter jurisdiction where the parties are both foreign citizens. The constitution in article III, section 2, also does not provide for this situation. So the required diversity is not present in situation C.

92. Does the required diversity under §1332 exist in each of the following cases? The matter in controversy exceeds $50,000 in each case.

A. P, a U.S. Citizen domiciled in England, sues B, a citizen of New York.
B. P, a citizen of New York, sues B, a Cuban refugee domiciled in Florida with the status of an undocumented alien.
C. P, a citizen of New York, sues B, a Cuban citizen domiciled in Florida with the status of undocumented alien.

92. 28 USC §1332(a) does not provide for the case of U.S. citizens domiciled abroad. In situation A, P is not a “citizen of a state” because she is not “domiciled” in a state. Furthermore, she is not a “citizen of a foreign country”, she is a U.S. Citizen. Thus, the required diversity does not exist in situation A. In situation B, the Cuban refugee is not a Cuban citizen, so he does not qualify under §1332(a)(2). Furthermore, he is not a U.S. Citizen, so he can not be a “citizen” of Florida even though he is domiciled there because “citizenship” requires “national formalities.” Thus, the required diversity does not exist in situation B. §1332(a)(2) provides for actions “between citizens of a State and citizens or subjects of a foreign state.” But since citizenship means where the person is “domiciled,” (under Baker v. Keck the section would appear not to apply to situation C since the Cuban citizen is domiciled in Florida and not Cuba.

93. American Airlines, a Delaware corporation, had its overall business policy prescribed in and directed from New York, where its activities were substantial but represented only a modest fraction of the company’s total. In states with a greater volume of activity, however, its local officers were concerned mostly with local activities. The company repaired and service most of its aircraft in Oklahoma; it flew more miles in Texas, and carried more passengers in California than it did in New York. Was New York its principle place of business?

93. Yes. The policy to be weighed when deciding the principle place of business of a corporation for diversity purposes is the basic policy behind diversity. That is that there is a fear that local states’ courts will have a pre-disposed bias toward their citizens, to the detriment of the defendant. Thus, the principle place of business should normally be where there is the most likelihood of bias, and this is normally where there are the most employees and the largest level of activity. If there is no central location for the activities or employees of the corporation, then the “nerve center” of the company is the most likely candidate. Thus, since American Airlines has its “nerve center” in New York, that is where its principle place of business is for diversity purposes.

94. A, a citizen of New York, sues B. a citizen of Pennsylvania, in a New York state court. The only possible basis of federal jurisdiction is diversity of citizenship. Can B properly remove to the federal district court?

94. §1441(b) provides that if the basis of subject matter jurisdiction is not federal question jurisdiction, then the action may only be removed if none of the defendants is a resident of the state in which the action is brought. Since B is not a citizen of New York, the case is properly removable.

95. A corporation incorporated in Delaware and having its principle place of business in New York commences a trademark action based on federal statute in a Mass. state court against a New York corporation having its principle place of business in Mass. Can the defendant properly remove?

95. Since the citizenship of a corporation is in its state of incorporation as well as its principle place of business, there is no diversity jurisdiction in this case. However, the case does involve one in which “the district courts have original jurisdiction” (under §1338) so the defendant may remove “without regard to the citizenship or residence of the parties” under 1441(b).

96. Suppose the Louisville & Nashville Railroad v. Mottley litigation (only the defense raised the federal question) were instead brought originally in Kentucky state court by the Mottleys. Could defendant railroad properly remove the action to federal court under §1441 today?

96. No. Since there is not diversity of citizenship, subject matter jurisdiction must be based on a federal question. Since there is not a federal question, the district court did not have “original jurisdiction.” Thus, the case may not be removed to the federal court.

97. In which of the United States District Courts would venue be proper under §1391 in each of the following cases? The matter in controversy exceeds $50,000 in each case.

A. P, a resident of the Southern District of New York, wishes to sue D, a resident of Vermont, the only possible basis of jurisdiction being diversity of citizenship. The claim arose in Buffalo in the Western District of New York.

B. P, a resident of the Southern District of California, wishes to sue D, a resident of the District of Maine, on the basis of a federal question. The claim arose in China and all events and property are located in China.

97. §1391(a) provides that a claim founded only on diversity may be brought only in “(1) a judicial district where any defendant resides...(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred...or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.” Thus, in situation A, P may bring the action in Vermont under §1391(a)(1) (defendant’s residence), or in the Western District or New York under §1391(a)(2) (claim arose). §1391(a)(3) does not apply because there are two valid choices. With regard to situation B, §1391(b) makes provisions for federal question jurisdiction that are substantially similar as §1391(a) for diversity jurisdiction. Thus, venue is proper only in Maine under §1391(b)(1) (D’s residence), because the claim arose outside of a federal district.

98. What if the plaintiff in Question 97 B above wished to bring the action in the Southern District of California (his own home district)? Is there any way that this could happen?

98. Yes. Under Rule 12(b)(3), the defendant may move to dismiss based on improper venue. However, if he does not do so in his “first paper,” he will lose the defense by operation of 12(g) and 12(h)(1), and thus be subject to personal jurisdiction in the Southern District of California, even though venue was not originally proper under §1391(b). 

99. Assume that a case in a state court is properly removed to the district court sitting in the same locality under §1441. Is that district court necessarily a court in which, under venue requirements for actions originally brought in the district courts, the plaintiff might have commenced the action?

99. No. A plaintiff may bring an action in his own home state court against an out of state defendant if he can get personal jurisdiction over the defendant (by proper service). However, the action may not have arisen in the plaintiff’s home state, but rather the defendant’s home state. In this case, proper venue under §1391(a) would require a federal action to be brought in the defendant’s home state. Thus, removal to “across the street” under §1441 does not necessarily result in what would originally have been proper venue. However, the defendant may take an additional step after removal, and have the case transferred (change of venue) under §1404 “for the convenience of the parties and witnesses, and in the interests of justice” to any other court where it might have been brought.

100. In view of the rule in Klaxon that a federal court must apply the choice of law rule of the state in which the federal court is sitting, how may we rephrase Mrs. Sibbach’s dilemma?

100. In Sibbach, the court stated that Mrs. Sibbach’s dilemma was that if Rule 35 was a “substantive” rule, then the Rules of Decision Act would apply Indiana Law (as the place of the accident), and order the examination, and if Rule 35 was “procedural”, then it is valid, and the examination should be ordered. However, the court was sitting in Illinois. So under Klaxon, the Illinois federal court would look to its own state court for the choice of law rule. It is unlikely that Ms. Sibbach, as an Illinois resident, would have had to submit under Indiana law because the state of Illinois has an interest in protecting her own citizens. Thus, the choice of law rule would have probably relieved her from examination.

101. How does a federal court sitting determine what the state law is? Does it have to follow precedent of a lower court in that state?

101. The standard is “what reasonable lawyers of that state, sitting as judges, would decide.” Thus, lower court precedent is not wholly binding.

102. In Ragan, a state statute said that the statute of limitations is tolled when the service is made on the defendant. A federal rule (Rule 3), stated that “an action is commenced by the filing of a complaint.” A plaintiff filed the action in federal court before the statute of limitations expired, but served the defendant after the statute of limitations expired. The court followed the “outcome determinative” test of Guarantee Trust to hold that the state statute must be followed because the outcome would be determined by this choice of law. If Ragan were decided again today (under Hanna and Byrd), how might it have been decided differently?

102. According to Byrd, the court must balance the federal and state interests on a case by case basis, in addition to taking into account the outcome determinative potential of the choice. However, Hanna went further to state that balancing is not required or desirable when there is a federal rule on point. Thus,  federal courts are bound by the constitution to follow a federal rule which is on point, unless it is unconstitutional under Sibbach (which is not likely because any rule that is arguably procedural will pass Sibbach given that it has been reviewed by Congress and adopted by the supreme court). Thus, we must determine if Rule 3 is on point. Rule 3 does not mention statute of limitations. It only states that the “action is commenced.” Thus, it is not directly on point (as was found in Hanna). When a federal rule is not on point, Hanna stated in dicta that the court should only take into account the outcome if it would be changed in a way that would encourage forum shopping or result in discrimination against Erie doctrine. Thus, the proper analysis would be to use Byrd balancing, but using a modified outcome determinative test. Here, the state interest in requiring actual service of process to toll the statute of limitations appears to be fairly arbitrary. However, the federal interest in remaining an independent court when it comes to matters of procedure is fairly strong. Although the outcome depends on which choice is made (state=out of court, federal=in court), it is not the type of determination that would likely encourage forum shopping. It only arises at the very end of the statute of limitations period, and only would catch unwary persons. Thus, it appears that Ragan would be oppositely decided today, except for the fact of stare decisis.

1. A sues B and C for libel, alleging that B falsely wrote of her on May 1st, that she was a thief, and that C did the same on July 1st. Is permissive joinder of B and C as defendants proper under Rule 20?

1. For permissive joinder under Rule 20, the claims must grow out of the same transaction, occurrence, or series of transactions or occurrences and some question of law or fact common to all of them must arise in the action. Here we have the same question of law - libel for calling someone a thief. However, it is unclear whether there will be the same question of fact arise in both actions. If the action would require the same witnesses, etc., then there would be the same question of fact in both actions. Depending on the circumstances, these could be viewed as a series of transactions. For example, if the authors both worked for the same newspaper, or were writing about the same event.

2. What is the federal rules’ remedy for an attempted joinder that is improper under Rule 20?

2. Separate trials may be ordered under Rule 20(b) or Rule 21.

3. Under the federal rules, how and when does the defendant raise the defense of a failure to join persns as required by Rule 19?

3. The defendant may move 12(b)(7) for failure to join a necessary party. This motion may be made at any time up to and including trial on the merits as one of the preserved defenses of 12(h)(2). As a practical matter, it is almost never granted.

4. If joining a necessary party under Rule 19 would destroy diversity among the parties (and thus subject matter jurisdiction), or if the party to be joined is not subject to service, what should the court do?

4. The court should balance the interests of the parties based on the factors listed in Rule 19(b), i.e. whether the non-joinder would be so prejudicial to a party as to require dismissal. The action should be dismissed only as a last resort. It is likely that there would have to be a due process conflict before the court would dismiss the action.

5. Why is the “opt-out” procedure in Rule 23(c)(2) not applicable to the kinds of class actions named in Rules 23(b)(1) and 23(b)(2), but only those of 23(b)(3)?

5. 23(b)(1) covers the case where the risk of inconsistent judgments that would create incompatible standards of conduct for the party opposing the class, or be dispositive, as a practical matter of the class’ interest.  As such, if a person were able to “opt-out” the policy of preventing inconsistent judgments would be defeated, or the “opt-out” provision would serve no purpose because anyone who opted out would have no practical remedy. Rule 23(b)(2) covers the case where injunctive relief (equitable relief) is appropriate. Here again, if a member were to opt-out, there would be no other remedy for him to pursue.

6. π sues ∆ in federal court, alleging herself to be a citizen of state X, and ∆ to be a citizen of state Y. ∆, although he knows that he is really a citizen of state X (and therefore no diversity jurisdiction), admits the allegation of citizenship. ∆ then waits for the state X statute of limitations to run, and brings a 12(b)(1) motion for dismissal for lack of subject matter jurisdiction, on the grounds that there is no diversity. Must the federal court dismiss the action, even if π will be prejudiced? 

6. Yes. The s/m jurisdiction of the federal courts is limited by Art III, §2. Thus, there is no doctrine of equitable estoppel with regards to s/m jursidiction. However, the court still may impose monetary sanctions for such behavior.

7. What would you think of the desirability and constitutionality of a federal statute which allows any claim, if timely brought in federal court but dismissed for lack of s/m jurisdiction, to be asserted in a new action in a proper state court if the now applicable statute of limitations would not have barred the original action, and if the new action is commenced promptly after dismissal from federal court?

7. This statute would prevent the ∆ from waiting quietly until the state statute of limitations has run to bring a 12(b)(1) motion. There is a question of constitutionality because this may give the court more power than was granted in Art. III, § 2.  This gives a court without smj some small ability to affect the rights of the parties. Also there is an issue of whether the federal statute can supersede the state statute of limitations. Since the policy behind the statute of limitations is to prevent surprise of the ∆ after the time has run, this statute would not violate that policy because the ∆ already has actual notice and is already involved in the litigation. Thus, this is probably a good idea. Also don’t want to force π to bring two simultaneous actions (one in state court) just in case the federal one is dismissed.

8. What would you think of a federal statute setting up a cutoff date in any federal action after which the court could not consider a 12(b)(1) motion unless the party raising the motion is relying on newly discovered facts or law, or there was collusion between the parties?

8. There is a question of constitutionality because this may give the court more power than was granted in Art. III, § 2. However, it may be justified under the necessary and proper clause. Also, one may argue that if a certain time has gone by, the judge has already impliedly determined that he has jurisdiction (i.e. theoretically denied a 12(b)(1) motion. This would prevent the ∆ from waiting until the statute of limitations has run to move for dismissal, as well as preventing the π from using a 12(b)(1) motion to get a new trial in state court after losing the federal case (to get around res judicata defense).

9. A contractor brings an action in federal court against certain unions, alleging that their strike is a conspiracy to restrict interstate commerce (a federal question). However, the Supreme Court has squarely rejected this contention in two prior cases. ∆ moves for dismissal under 12(b)(1). Must the court assume jurisdiction to pass on the merits, or may it simply dismiss as not presenting a real “question.”

9. A claim which based on a federal question which has already been decided twice may be dismissed for lack of s/m jurisdiction because the court has the power to assess the legal sufficiency of the claim, and find it insubstantial under Bell v. Hood. The federal “question” here is no longer a “case” or “controversy” under §1331 because the issue has already been foreclosed.

10. In a case such as Bell v. Hood (where the Supreme Court stated that the District Court must assume jurisdiction in order to pass on the sufficiency of a claim under 12(b)(6)), what difference does it make whether a defendant who faced with a meritless claim wins on 12(b)(1) or 12(b)(6) since both actions are dismissals?

10. It matters for two reasons: first - a 12(b)(6) dismissal is on the merits. Thus, the defendant would be protected by res judicata, whereas a 12(b)(1) dismissal may occur early in litigation, before any issues are precluded. Also, if the action in federal court consists of a federal claim, and a related state claim (by way of pendent jurisdiction), the state claim would survive a 12(b)(6) dismissal of the federal claim, whereas it would not survive a 12(b)(1) dismissal (because that would destroy pendent jurisdiction).

11. π sues ∆1 in a federal district court on a claim for which there is federal question jurisdiction. Does the federal court have discretion under the doctrine of pendent jurisdiction to hear a closely related state-law claim that π has against ∆2? What if the original claim against ∆1 were based on diversity of citizenship, and ∆2 was from the same state as π?

11. Yes. In Gibbs v. United Mine Workers, the Supreme Court held that a state claim between two parties that arises from the same “nucleus of operative fact” as a federal question claim between those two parties may (discretionally) be fully adjudicated in federal court if the federal question dominates. §1367(a) codifies Gibbs and allows pendent party jursidiction if the original claim is based on a federal question. Here, ∆2 is a pendent party to the original action, and so the court has the power to exercise discretion as to whether to hear the case. However, §1367(b)  refuses to extend pendent party jursidiction to diversity cases. The policy of diversity jurisdiction is to prevent unfairness to the ∆ because of the forum. Here, that policy is weak because of lack of strict diversity.  It would allow the π to defeat the diversity requirement by bringing an action against a diverse party, and waiting for them to implead in in-state third party.

12. Under which of the following circumstances does the federal court have the power to exercise ancillary jurisdiction over a state claim brought by a defendant where the basis for jurisdiction in the underlying action is diversity of citizenship. Would it matter whether the basis for jurisdiction in the original action was a federal question of exclusive jurisdiction (i.e. patent infringment)?

a. compulsory counterclaims under 13(a)
b. impleader actions under 14(a) 6th sentence.
c. intervention as a matter of right under 24(a)
d. cross-claims under 13(g)
e. permissive counterclaims under 13(b)
f. permissive intervention under 24(b)
g. impleader actions under 14(a) 7th sentence

12. Only a-d. Since both e and f are permissive in nature, there is not a common nucleus of operative fact. Thus, there is no power of the court to exercise jurisdiction. An impleader action under 14(a) 7th sentence allows the π to bring a claim against a third party defendant impleaded by his own original defendant.  Although this case would pass constitutional muster under the Gibbs test (common nucleus), there must be some reason to exercise that power.  If diversity of citizenship is the only basis for jurisdiction, then there is no compelling reason to exercise ancillary jurisdiction over the state claim because it defeats the strict diversity interpretation of §1332. See Owen v. Kroeger. However, in an exclusive jurisdiction case, such as patent infringment, there are specific statutes which provide for supplemental jurisdiction, for example §1338. It is unclear what would happen in a federal question case of concurrent jursidiction. Also, if the ∆ removed the case to federal court, there would be a reason to exercise supplemental jurisdiction in the 14(a) 7th sentence case because the π could have brought  the claim in the state court where he brought the action, and has been involuntarily dragged to federal court. This should not defeat his claim.

13. Suppose π brings a federal question claim against ∆. In response, ∆ brings a 13(a) compulsory counter claim against π.  In response to the counterclaim, π impleads a third party, T, under rule 14(b) claiming that T is liable over to him for all or part of the counter claim that ∆ has against π. May ∆ then seize the opportunity to bring a 14(a) 7th sentence related state claim against T? What if ∆’s counterclaim against π (which triggered his impleading of T) were a permissive counter claim under 13(b) instead?

13. If ∆ brought a compulsory counter claim, it is likely that the court will exercise supplemental jurisdiction because ∆ had no choice but to bring the compulsory counterclaim, and so should not be required to maintain a separate state action against T simply because he was brought to federal court by π before he had a chance to sue T directly in state court. If the counterclaim were merely permissive, there is no compelling reason for the court to exercise supplemental jursidiction because the ∆ has chosen the federal court himself and thus should be limited in the same way as any π who wanted to bring an unrelated state action in federal court (no unrelated claims under §1367).

14. π, a citizen of Maine, sues ∆, a citizen of Oregon, in the Maine state court for breach of contract. Before bringing his action, π assigned 1/100 of his claim to a friend who was also an Oregon citizen for a nominal amount, solely to defeat diversity of citizenship. If ∆ moves to remove to federal court under 1441, what should the court do?

14. Deny the motion. There is a difference between attempting to create diversity jurisdiction by selling an interest in the claim to diverse parties as strawmen, and defeating diversity jurisdiction by selling an interest to non-diverse parties. The first is prohibited by statute (§1359) whereas the second is not regulated. The reason is that the π may choose his court however he wishes, and the motive is not of concern because the federal court has no great interest in bringing parties into federal court on the basis of mere diversity.

15. In which of the following cases does subject matter jurisdiction for all of the parties based on diversity of citizenship under §1332 exist (assume P1, P2, D1, and D2 are all from different states):

a. P1 and P2 each have a $25K claim against D1.
b. P1 has two claims, each for $25K against D1.
c. P1 has two claims, each for $25K, one being against D1, the other against D2.
d. P1 has a claim for $55K against D1, and P2 has a claim against D1 for $8K.

15. Only b. The general rule is that multiple plaintiffs may not aggregate claims against the same defendant (case a), and corelatively, that a single plaintiff may not aggregate claims against multiple defendants (case c) in order to satisfy the jurisdictional amount limitation of §1332. Also, in Zahn the Supreme court held that even if one plaintiff satisfied the jurisdictional amount, other plaintiffs with lesser claims could not join unless there was a federal question. However, this case shows poor policy because it makes no sense to prevent the remedy of a class in federal court just because some of the members are not injured enough.

16. π from New York sues ∆ from Nebraska in New York state court for a contract claim of $35K. ∆ counterclaims on the same contract for $55K, and moves to remove the case to federal court based on diversity of jurisdiction. What result? Why?

16. The motion should be denied. Although the total amount in controversy (as far as the counterclaim goes) exceeds the jurisdictional amount of $50K, the Supreme Court in Shamrock has held that the words “defendant” and “defendants” in §1441(b) apply only to original defendants, and not to plaintiffs that become defendants solely because of a counterclaim. Their reasoning was that a π should not be able to get his minor state claim into federal court simply by suing a defendant who will assert a bigger counterclaim.

17. May the π from the previous question voluntarily dismiss his initial $35K claim, and then remove the remaining counterclaim as a defendant, and finally replead the initial claim as a counterclaim in federal court? What if the action was instead brought in Nebraska state court?

17. No. According to §1441(b), an defendant can not remove to the federal court if he is sued in his own state (in-state ∆ can’t remove). Thus, since π chose to sue in New York state court, and he is a citizen of New York, he can not remove. If the action were instead brought in the Nebraska state court, it is still doubtful, given the strong language in Shamrock, that the π would so easily be able to get around the narrow interpretation of “defendant” in that case.

18. π brings a federal civil rights action against ∆ in state court, and also joins an unrelated state contract claim against ∆. ∆ moves to remove to federal court based on the existence of a federal question, but π argues that the case is not removable since §1367 requires that the state claim be related to the federal claim in order for the court to exercise pendent jurisdiction. What result? Why?

18. §1441(c) allows an entire case to be removed to federal court when a “separate and independent” federal claim is joined with an otherwise non-removable claim. The federal court may then adjudicate all issues, or remand any matters in which state law predominates. It is possible that if the court chose to exercise pendent jurisdiction in this case based only on §1441(c) that there would be a constitutional power problem because the state claim does not meet the Gibbs “common nucleus” test and there may be no compelling reason why the federal court should adjudicate it. Bottom line: π can not use supplemental jurisdiction limitations (i.e. adding an unrelated state claim) to defeat smj of federal court for federal questions.

19. π brings a breach of contract action against D1, and a federal civil rights action against D2. D2 wishes to remove the case to federal court, but D1 does not desire to join in the notice of removal. May D2 properly remove against the wishes of D1?

19. Yes. Although §1441(a) requires that the party be removed by the “defendants” (meaning all of them), this case triggers §1441(c). Since §1367 provides for pendent-party jursidiction, D2 can remove his “separate and independent” claim to federal court without D1’s consent, since D1’s action would be otherwise non-removable. However, the court probably would remand D1’s action due to predomination by state law. This hypo is probably not going to occur frequently because the rules of permissive joinder Rule 20, do not allow claims not “arising out of the same transaction or occurrence” to be brought against multiple defendants. Thus, this case lies in the twilight zone where the claims are both “arising out of the same transaction” and “separate and independent.” Goldome is an example of such a case, where the “separate and independent” claim of violation of federal truth in lending laws against the lender defendant arose out of the same transaction (construction of home improvements) as did the breach of contract action against the general contractor defendant.

20. Would the federal court in question 19 have the power to remand both the federal question claim against D2, and the state question claim against D1 to state court?

20. Yes. §1441(c) provides that the federal court may remand “all matters in which state law predominates.” Thus, it has the power to remand the federal claim as well as the state (assuming the federal claim is not of exclusive jurisdiction - i.e. patent infringment) because “all matters” means entire cases. Otherwise, the result would be piecemeal consideration of the case. This is not desirable if the federal interest in the case is small.

21. π successfully seeks a preliminary injunction against ∆ to prevent him from using a megaphone to shout anti-religious statements at a catholic university’s upcoming commencement ceremony (1 week away). However, ∆, thinking the order to be an unconstitutional denial of free speech, disobeys it. The court then punishes him with criminal contempt for failure to obey a court order. ∆ appeals claiming that the criminal contempt order is invalid, as well as the original order. What result?

21. A judgment, though erroneous, is valid and is not subject to collateral attack if the court has jurisdiction over the subject matter, and jurisdiction over the person. Since there was no appeal, the preliminary injunction is still valid and thus, so is the contempt order. The ∆ could have sought an expedited appeal of the injunction (as an interlocutory order under §1292), and that would have been his only avenue of relief from judgment unless he can show that an appeal would have been delayed until after the event (and thus meaningful review was not available). If the ∆ was still able to appeal (i.e. within 30 days), he could have the case remanded to reconsider his criminal contempt punishment if the court of appeals determined that the injunction was unconstitutional and errouneously granted.

22. π brings an action against ∆ in New York federal court, alleging diversity of citizenship. However, ∆ is not a resident of New York, and denies diversity, moving for a 12(b)(1) dismissal. The judge does not believe ∆, and denies the 12(b)(1) motion. ∆ fails to show up, and default judgment is entered against him in New York federal court. π then brings an action for recovery on the judgment in California state court where ∆ is a resident. The ∆ pleads that the New York judgment is void for lack of subject matter jurisdiction. What result?

22. ∆ loses. A court has jurisdiction to determine whether it has jurisdiction. This means that ∆ is precluded from raising a collateral attack on the New York judgment on the basis of res judicata. The issue of subject matter jurisdiction was fully litigated in New York when the judge passed on the 12(b)(1) motion. Even though the judge was completely wrong in assuming jurisdiction, the judgment is valid and is entitled to enforcement in California by operation of the supremacy clause. ∆ would have had to appeal the decision in order to overturn the erroneous (but valid) judgment.

23. §1963 dispenses with the necessity of an independent action upon a judgment by providing for registration of a district court judgment for recovery of money or property in any other district court, with the effect of automatically converting the judgment so registered into a judgment of the court where it was registered. Does this device of registration destroy the defendant’s opportunity to make a collateral attack?

23. No. A collateral attack on the judgment may still be made on appeal of the registered judgment in the new state.

24. What mechanisms provide the π with the ability to enforce his judgment in each of the following cases:

a. state court judgment in state 1, sought to be enforced in state court of state 2.
b. federal court judgment, sought to be enforced in any state court.
c. federal court judgment, sought to be enforced in any other federal court.
d. state court judgment, sought to be enforced in any federal court.

24.	a. the full faith and credit clause of Art. IV, §1.
	b. the supremacy clause
	c. federal res judicata
	d. 28 U.S.C. §1738 

25. New Jersey defendants were telephoned at home and falsely told that they had been chosen to receive two Broadway (NY) tickets as a promotional venture to get their opinion of the new 7:30 p.m. curtain time. They were subsequently served in the theater by the man sitting behind them. Is this service valid to get in personam jurisdiction over the New Jersey defendants in New York state court?

25. No. Although physical presence in a state has always sufficed for exercise of in personam jurisdiction, there is an exception for the use of fraud or force. A defendant may not be served by fraudulently or forcibly enticing him into the state in order to serve him while he is physically present.

26. An argentine doctor visiting in a New York city hotel was telephoned by a process server who falsely represented himself to be a Dr. goldman with a letter from the president of the New York County Medical Society to be personally delivered. They arranged to meet in the hotel lobby, where service was made. Is this service valid to get in personam jurisdiction over the Argentinian defendant in New York state court?

26. Yes. The exception for fraud does not apply when the defendant is already physically present in the state when served. His pre-existing presence is sufficient, and fraud to get him out of hiding does not invalidate the service.

27. A prospective defendant is in New York only for settlement negotiations with a potential plaintiff. Negotiations break down. Plaintiff continues the conference for a few hours, not to conduct good faith negotiations, but rather as an artifice to make service on defendant in a New York state court action by awaiting arrival of the process server. The defendant makes a motion to vacate service. What result?

27. There is a general rule of immunity from service of process when a defendant is present in a state for attendance at litigation and for a reasonable time to go to and from. The policy is that the states want the defendant to come into the state to defend the action, without fear of subjecting themselves to in personam jurisdiction on unrelated matters. Although this is only a settlement negotiation, the same reasoning would seem to apply. However, there is a strong argument to be made that presence for any reason other than litigation subjects a person to amenability to service. For example, here the defendant could have insisted that the settlement negotiations take place in his own home state.

28. π (CA) brings an action in NY state court against ∆. ∆ counterclaims on an unrelated claim (permissive counterclaim under 13(b)). π objects to in personam jurisdiction for the unrelated counterclaim, arguing that his physical presence in the state for litigation immunizes him from other unrelated claims. What result?

28. Although most states have immunity statutes that bar an unrelated action by a third party against the litigant, they are less applicable here where the π is the one seeking the protection of the foreign state court against the ∆. It is not unreasonable that the π, by voluntarily demanding justice from the foreign state court, should be treated as being physically present for all claims arising from that ∆.

29. P1 and P2 bring an action against D in a court of state A, which has rules concerning counterclaims and cross-claims identical to the federal rules. D asserts a permissive counterclaim against both plaintiffs. P1 then brings a cross-claim, arising from the transaction that is the subject matter of the counterclaim, against P2. P2 has no connection with state A other than her institution of the action against D. Is there jurisdiction over P2 for the purposes of the cross-claim?

29. A plaintiff who brings an action against a foreign ∆ in the ∆’s home state subjects himself to in personam jurisdiction as to any counterclaim, whether or not compulsory, from that ∆. Thus, since it was the counterclaim that triggered the cross-claim against P2, there probably is in personam jurisdiction over P2. It was foreseeable that the litigation would expand based on the counterclaim of ∆. Thus, it is not unfair to subject P2 to the power of the state since he is demanding justice against ∆. However, the argument would be much weaker, and probably fail, if the cross-claim was not related to the counterclaim. That is to say, if P1 took advantage of P2’s presence as a lucky opportunity to bring an unrelated cross-claim.

30. P sues D in federal district court. D moves successfully under Rule 6(b)(1) for an extension of time to answer or move, and then within the extended time, moves to dismiss under 12(b)(2) for lack of jurisdiction over the person. Has D waived this jurisdictional defense by the request for extension of time?

30. Although rule 12(h)(1) provides that a 12(b)(2) motion is waived if omitted from a consolidated defense motion under 12(g) or in the answer, 12(g) does not by its terms apply to motions for extension of time under 6(b)(1). A 6(b)(1) motion does not belong in the consolidated defense motion under 12(g) because it only applies to motions made under Rule 12. Thus, the D has not waived his 12(b)(2) defense. However, he must be careful to file the motion without physically appearing.

31. P sues D in federal district court. D moves to dismiss under 12(b)(2), but his challenge is overruled. D then answers, including an independent counterclaim. Claim and counterclaim are litigated and decided. If D loses on the main claim, may he appeal from that judgment asserting lack of jurisdiction over his person? Does it matter whether the counterclaim was compulsory or permissive? If such appellate review were available and if the judgment on the main claim were reversed on the 12(b)(2) defense, what consequence if any would this have for judgment on the counterclaim? Does it matter whether D won or lost the counterclaim?

31. D brought a counterclaim, and so he is using the power of the courts over the π. Under Adam v. Saenger, he would appear to have waived any objection to jurisdiction over the person, at least if it were only a permissive counterclaim. It would probably be unfair to require the D to subject himself to the main claim on peril of losing the opportunity to raise a compulsory counterclaim, but not if the counterclaim were only permissive. If D wins the main claim appeal on the 12(b)(2) motion, he would probably have to forfeit his counterclaim as a matter of fairness to P, but it would be a closer call if he won the counterclaim after it had been fully litigated.

32. P of Florida sues D, a drug manufacturer incorporated in Delaware with its principle place of business in Conn., in a South Carolina federal court based on diversity jurisdiction, on account of alleged injuries suffered from the consumption of drugs manufactured by D. D’s activities in South Carolina are limited to advertising and mail solicitation. P serves D pursuant to a South Carolina long-arm statute (and rule 4(e)), which its highest court has held to go to the outer limits of due process. D moves to dismiss for 12(b)(2) lack of jurisdiction over the corporation. What result?

32. Dismiss. Even though the long-arm statute might authorize service of process to the limit of due process, Int’l Shoe provides the test for whether due process is met when serving a corporation. There must be “minimum contacts” between the corporation and the state, sufficient so as not to offend “traditional notions of fair play and substantial justice.” Here, the only contacts with the state are minor advertising and solicitation by mail. The corporation is not “doing business” within South Carolina, meaning it is not conducting “continuous and systematic” activity. Also, the claim is unrelated to the activity. The claim is for personal injury, and that is unrelated to advertising. Thus, there are not “minimum contacts” with the state for the purposes of this particular action. 

33. D makes false representations outside the state communicated by mail or telephone to P within the state, intending that they should be relied upon there to P’s injury. D has no other connection with the state. Is there sufficient basis for in personam jurisdiction under a statute similar to the Uniform Act (long-arm statute)?

33. Perhaps. Under Sub. (a)(3), a person who causes a tortious injury by an act or omission in the state is subject to the long arm statute. Assuming that the using of telephone services in the state to complete the call is in-state tortious activity, then it would fall under this section. Also, there is the constitutional “minimum contacts” inquiry. The D has performed a single act in the state, and since the claim arises from the act, it is consistent with due process to subject him to in personam jurisdiction with respect to that claim. Additional factors to consider are the ∆’s intent and the states’ interest in providing relief for its citizens. Alternatively, if D had any regular or persistent course of conduct, he would certainly fall under sub. (a)(4).

34. The California Basis statute provides that a court may exercise jurisdiction on any basis not inconsistent wiht the constitution. A CA π brings an action in a CA state court against a Nebraska ∆ for damages arising out of a vehicular accident that occured in Nevada near the CA border. ∆, an interstate trucker, was en route to CA to deliver and receive cargo when the accident occurred. During the 7 years prior to the accident he made about 20 trips per year to CA. Is there sufficient basis for personal jurisdiction under the CA statute?

34. Yes. Since the CA basis statute is coterminous with the due process inquiry of Int’l Shoe, there is only one step in the analysis - whether “minimum contacts” existed sufficient to subject ∆ to in personam jurisdiction. The ∆’s contact with CA is frequent and systematic, and also fairly substantial. Thus, there would seem to be no unfairness in subjecting him to in personam jurisdiction were the accident to have occurred in CA. However, since the accident occurred in NV, the question is more difficult. We must look to the other factors. It is probably only luck that the accident occurred on the NV side of the border, since ∆ was on his way to CA. Since it is mostly desert, the witnesses are probably located in CA (tourists on their way to or from Vegas). CA has a strong state interest in providing a remedy for its citizen. NV has very little interest in the matter. Thus, it would not offend the notions of “fair play and substantial justice” to try the case in CA, provided there is adequate notice.

35. P of Illinois has brought a paternity action against D of Ohio in an Illinois court. P alleges, in essence, that D sired her child out of wedlock and has failed in his duty to provide support. No other connection of D to Illinois is alleged. D received in-hand service of process in Ohio pursuant to the Illinois long-arm statute. D objects to personal jurisdiction. What result?

35. Consentual sex (as here) is not the transaction of business, a tortious act, real property, etc. So it does not literally fit within one of the subdivisions of the long-arm statute. If it does not fit the long-arm statute, there is no need to see if it otherwise would be consistent with due process. However, the court could argue that breach of a fiduciary duty is sufficiently “like” a tortious act that the statute could be interpreted to cover it. In such a case, there would probably be sufficient “minimum contacts” with the state to satisfy due process given that the father’s child and duty to pay reside there.

36. A Virginia woman sues her former husband in Maine for alimony and child-support arrearages under a foreign decree. He is an American CIA agent domiciled in Thailand. She obtains service upon him while he is briefly in Maine visiting his parents. He has no other significant contacts with Maine or with America. Is there sufficient basis for personal jurisdiction?

36. The traditional rule is that physical presence, no matter how transient, was sufficient basis for exercise of personal jurisdiction. However, under the modern power/reasonableness test, that transient presence may not be enough without some additional factors to make it more reasonable. Shaffer has applied the modern power/reasonableness test to all bases for personal jurisdiction, including in personam, in rem and quasi in rem, as a matter of constitutional due process. Thus, although the state might have the power to exercise jurisdiction, it may not be reasonable to do so here.

37. An employee (CA) sues his employer (CA), and his union (CA), and the union’s trustee (NY) for failure to pay certain wages that the employee alleges he is due. The employer and the union agreed to pay the money in dispute to the trustee instead of the employee. (Same facts as Atkinson). The trustee’s only contacts with CA are the fact that the employer mails the money to the trustee. If you represent the employer, what position should you take on whether the trustee is subject to personal jurisdiction in CA, given the “indispensible party” dismissal provision of Rule 19(b)?

37. If you successfully move to dismiss claiming that there are insufficient minimum contacts, then you risk paying twice if the trustee is found not to be indispensible. This is because the action would continue without him, and if you lost to the employee, you would have to start paying him the money that would have otherwise gone to the trustee. The trustee, who would not have been bound by the prior decision, could bring a separate action against you and win, resulting in conflicting decisions. However, if you do not move to dismiss (you think there are minimum contacts), you run the same risk of paying twice because he may nevertheless be found to be not subject to personal jurisdiction, and not indispensible. So your best course of action would be to go to federal court and bring a federal interpleader action under §1335 because it requires only minimum diversity (not strict diversity), and has no venue restrictions, and allows nationwide service of process under 4(k)(1)(C). Then let the employee and the trustee fight it out, and wait to pay the winner.

38. P(NY) sues D(CA) in New York state court for personal injuries arising from a 1977 automobile accident in California. As basis for jurisdiction, P siezes D’s insurance policy obligation to defend in NY, since D has no other contacts with NY. D answers. (Note that this was before Rush v. Savchuck put an end to this tactic for lack of “minimum contacts”). Then in 1980, after Rush was decided, D moves 12(b)(2) to dismiss, but P argues that the 12(b)(2) defense was waived for not being in the answer. D moves for leave to amend his answer to add the 12(b)(2) defense under Rule 15, claiming that he has good cause (new law). However, the statute of limitations has now run, so P argues that he would be unjustly prejudiced by a dismissal this late. How should the court rule?

38. The best result here is for the court to allow D to amend only if he waives the statute of limitations so that P could then bring the action in CA. 

39. Is it possible to collaterally attack a judgment that was made in an inconvenient forum (i.e. if the local action doctrine was breached)?

39. Not if the problem were only venue related. However, the local action doctrine appears to have some vestige of jurisdiction to it.

40. In Livingston v. Jefferson, the court held that the Virginia action must be dismissed because the trespass was on Louisiana land. Would §1655 (quasi-in rem jurisdiction) be of any assistance to the plaintiff who was seeking to recover for trespass of his land in such a case?

40. No. QIR type I action would only settle the interests of the land as between the owner and the adverse party. Here, the owner already has title to the land, so he can not recover anything that would be the equivalent of damages for trespass.

41. Under what circumstances would a plaintiff wish to transfer an action under §1404(a) to a more convenient forum?

41. If the only place that the plaintiff could get proper subject matter jurisdiction, jurisdiction over the person, and venue within the statute of limitations period were an inconvenient forum, he could transfer. This would be particularly helpful in a case where the statute of limitations had already run in the most convenient forum, enabling the plaintiff to bring the more favorable statute of limitations of the original court back to the convenient forum of the destination court, because the transferor law applies to §1404(a) transfers.

42. What remains of the federal doctrine of forum non-conveniens (for example, as applied in Gulf Oil) after the enactment of §1404(a)?

42. §1404(a) by its own terms applies only to transfer to other “districts”, meaning U.S. District Courts. It does not apply to transfers out of the U.S. to, for instance, Scotland.

43. A diversity action by P against D for personal injuries to P, a guest passenger in D’s automobile, is properly brought in a federal court of state X, which is D’s residence. It is properly transferred to a federal court of state Y, P’s residence, pursuant to §1404(a) upon P’s motion. The law of state X holds that a host driver is liable to his guest passenger for lack of ordinary care, regardless of where the accident occurred. The law of state Y holds that the duty of care is measured by the place of the accident, in this case, state Y, where a guest passenger may only recover upon proof of gross negligence. What should be the governing law as to standard of care in this case?

43. On a §1404(a) transfer, whether made by either party, the law of the original (transferor) court applies. Here, that would be the law of state X. Although P apparently did this solely to bring the more favorable law into his state, the statutes allow this type of forum shopping. Thus, P could recover. The ALI had proposed (unsuccessfully) that the transferor state law should only apply if the defendant transferred, and that the destination state law should apply if the plaintiff transferred, in order to avoid this kind of manipulation.

44. Change the facts of the preceding question so that the more favorable law to P is in state Y, not state X where the action was originally brought. Does this change the outcome?

44. The law of the transferor state still applies. Here, the plaintiff was stupid, and so the less favorable law follows him. However, this illustrates that the ALI proposal shown in the previous question doesn’t help, because it would just reward stupid plaintiffs for their own stupidity. The forum shopping that this allows is fairly limited (because smj, jop, and venue have to be proper in the original court), and the alternative would be to inconvenience everyone by holding the trial in the inconvenient forum, because otherwise, the plaintiff would not move to transfer, he would just keep the action in the inconvenient forum. Either way, the plaintiff would get the favorable law, so its better if everyone is not inconvenienced as well.

45. Change the facts of the previous question such that the transfer occurs under §1406(a) rather than 1404(a) because D doesn’t really reside in state X (and so there is improper venue). Now which law should apply?

45. §1406(a) transfers apply destination court law. Now we have the case where the bungling plaintiff brings the action where there is bad venue and unfavorable law, and then moves to transfer to a forum of proper venue and more favorable law. Although this rewards the stupidity of the plaintiff, the alternative is forum shopping to the extreme because §1406(a) allows transfer from almost any district.

46. Suppose that a federal court of state A would apply a one year statute of limitations to a particular action if commenced there, while a federal court of state B would apply a two-year statute if the same case were commenced there. Can plaintiff, after transfer from an improper forum under §1406(a), maintain that action over a statute of limitations defense in the following situations:

a. federal suit is brought in forum A after one year, but transferred to forum B before two years expires.

b. federal suit is brought in forum A before one year, but transferred to forum B after two years expires.

c. federal suit is brought in forum A after one year (and before two years), but transferred to forum B after two years expires.

46. Situation a: everything is okay because in §1406(a) transfer, the destination court law applies, and it is transferred within the statute of limitations of the destination court.
Situation b: everything is okay because Rule 3 tolls the statute of limitations in federal court upon the filing of the complaint (commencement of the action), so it does not matter that the transfer occurs to the destination forum after the destination statute of limitations would have run (had it not been tolled).
Situation c: here there is a conflict of authority:
	1. allow filing of the action to toll the statute of limitations, even in the wrong court. However, this gives a 1406(a) plaintiff (the stupid one) a large advantage over the 1404(a) plaintiff (the correct one).
	2. out of luck - 1406(a) has already been interpreted broadly enough to cover bad venue as well as bad jurisdiction over the person defects, but it wasn’t made to cover statute of limitations problems as well.

47. If P brings an action against a foreign D in an inconvenient forum in the United States (i.e. all witnesses, evidence, etc are in a foreign country) and a statute of limitations in the foreign forum has already run, must the court condition dismissal of the U.S. case on D’s waiver of the statute of limitations in order to provide a forum for P, or is this merely a situation where the court may so act in its discretion?

47. Piper implies that the interests of the P are to be given little weight in the balancing test in determining whether the action should be dismissed for forum non-conveniens. However, if the remedy provided by the alternate forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law to the plaintiff may be given substantial weight. Thus, it appears to be within the discretion of the court, and it is not bound by due process to require D to waive the statute of limitations. However, it is hard to envision a case in which the interests of the defendant were so weighty as to outweigh the destruction of  the plaintiff’s remedy.

48. In Mitchell v. W.T. Grant, the court allowed prejudgment seizure of property by a secured creditor, without prior notice and a hearing, on the grounds that there were other adequate procedural safeguards available, such as 1) needing a court order, 2) affadavit which alleges facts, 3) creditor posting a bond, 4) debtor having the right to post a counter-bond, and 5) a prompt post-seizure hearing. Would these safeguards be adequate if the creditor was unsecured (i.e. did not have a pre-existing interest in the property)?

48. When a creditor is secured, he already has an interest in the property. Thus, he is less likely to be seizing the property as a tool of harassment than the unsecured creditor. Since the unsecured creditor has no relation to the property, there may be a requirement for slightly stronger procedural safeguards to avoid irreparable harm to the debtor. 

49. A mechanic’s lien on a car (for failure to pay repair fees) does not deprive the owner of possession of the vehicle, it does however, serve as a cloud on the title. Should the filing of a mechanics lien on a car require prior notice and an opportunity to be heard?

49. Probably not. Mechanics have a very strong interest in getting paid, because the work has already been performed. Thus, without the tool of a mechanics lien, it is likely that a mechanic would be irreparably harmed very frequently, because the car’s owner would refuse to pay, sell the car, and spend the money. The owner of the car has an interest in keeping the title free from cloud, but it is not a very strong interest because he is not likely to be irreparably harmed by being forced to postpone a sale until an erroneous lien is cleared up. Also, the probability of error here is fairly small because it is very easy for the mechanic to provide documentary evidence of the fact that he did the work, and that it was not paid for. Thus, the balance seems in favor of the mechanic not having to spend money and time with a pre-seizure hearing.

50. For personal injuries in an auto accident, A sues B in a jurisdiction where the issues as to liability are determined first, and the damage issues are heard later by another jury if liability is found. The jury finds for A on liability. Should this determination before the ultimate judgment, which would have awaited the assessment of damages, now be controlling in a personal injury action by B against A involving the same issues? Should this determination be controlling, by way of merger, in another action by A against B on the same claim?

50. This would be collateral estoppel because it involves bringing an issue determined in the first claim (by A) to bear against a second, different claim (made here by a different party, B). The scope of the issue determined is important. If this is a contributory negligence jurisdiction, then the first action issues would include that B was negligent AND A was not negligent. Since it was actually litigated, and is essential to the judgment of liability, it would operated to preclude B from raising the issue of A’s negligence in his action against A. If A already has a second action against B on the same claim, this would be direct estoppel, because it involves bringing an issue determined in the first claim (by A) to bear against the same claim being made in a second action (also by A).

51. There is a defense named “prior pending action.” This defense will result in dismissal without prejudice if another action on the same claim between the same parties was pending in the same state, or in the same federal district, when the present action was commenced and if that other action is still pending. Why might a defendant not plead “prior pending action” but instead wait for a dismissal on the merits?

51. Since the dismissal without prejudice of the second action for “prior pending action” would not result in claim preclusion (or even issue preclusion) on the first action, the defendant may try to get a dismissal of the second action on the merits if possible, to use the claim preclusion defense as a bar to the first action. This is especially useful in a case like Williamson where the second action was dismissed for expiration of the statute of limitations, and operated to bar the first action, even though it had been brought first.

52. π brought a FELA action against a railroad and lost on the ground that he was not an employee of the railroad at the time of his injury. He now sues the railroad in the same court for the same injury, basing his claim on common-law negligence, a theory available only if he was not an employee. The railroad pleads bar. Wat judgment?

52. Here, the two actions are based on different, and legally incompatible theories. However, they both arise out of the same transaction or occurrence, so they are the same “claim” as defined by O’Brien (NY state court). Also, as stated in Williamson it does not matter if the same claim is brought under different legal theories, it is still barred because it is the same claim. This result is correct because the liberal pleading rules of 8(e)(2) allow the plaintiff to bring as many separate claims as he has regardless of consistency. Thus, the π here could have brought both legal theories as grounds for recovery in the first action, and failure to do so was “claim splitting.”

53. Suppose a π sues in a state court for unfair competition and loses on the merits. She then alleges the same basic wrong in a federal court action under federal antitrust laws, an action over which the courts have exclusive jurisdiction. The defendant pleads bar. What judgment? Would your answer be different if there were diversity of citizenship?

53. The π could not have brought the federal anti-trust action in the state court because of exclusive federal jurisdiction. Thus, the claim was not available to her in her choice of forum (state court). Thus, although these are the same claim, only represented by two different legal theories, the claim preclusion doctrine of Williamson does not literally apply. It really does not matter in this case whether there was diversity of citizenship because there is already subject matter jurisdiction in the federal court for the federal claim (by statute) and for the state claim (by pendent jurisdiction). Thus, the π could have brought the case originally in federal court, and assuming that the court would choose to exercise pendent jurisdiction, both claims could have been tried together in the original action. However, applying bar for that reason would be a penalty on π for her choice of forum. (also, an unresolved issue is why should defendant be able to claim bar in this situation when he could have removed the case to federal court?)

54. Reverse the situation in the preceding question, assuming that the first action was brought in the federal court under the federal anti-trust laws, with no reference to the claim of unfair competition, and the second in the state court. Should there necessarily be a bar to the state action?

54. Probably. There would be a bar if the π could have raised the unfair competition in the first action. Here she could have done so by pendent jurisdiction. However, §1367(c) provides that the court may decline to exercise pendent jurisdiction over the state claim. So there may be no bar because the state claim could not have been brought in the first action. We have know way of telling unless the court passes on the issue of subject matter jurisdiction on the state claim. The Restatement approach is that unless it clearly appears that the federal court would not exercise pendent jurisdiction, the π’s failure to bring the state claim in the first federal action would result in a bar. Here, it is likely that the court would exercise pendent jurisdiction.

55. In Sutcliffe, the π brought four separate actions, one for breach of each of four consecutive leases. The defendant successfully dismissed all but the first action. The judge stated that “the plaintiff may count itself lucky to have the matter settled before a portion of its rights is irretrievably lost.” Why did the judge say this?

55. The defendant could have let one of the actions go to default judgment, or some other quick conclusion on the merits, and then pleaded bar with respect to the other actions. If each action were for $10,000, for a total of $40,000, the defendant could quickly have gotten away with no more than $10,000 liability becuase the first action to be adjudicated would have acted as a merger to all of the others.

56. What argument can be made that the offensive use of claim preclusion by a defendant in a multiple action situation as described above should not be successful?

56. One may argue that claim preclusion is a defendant’s remedy and not an affirmative tactic. Thus if the defendant does not object to having multiple actions for the same claim, for the purpose of letting one go to judgment on the merits, then he impliedly waives the objection to multiple actions (which is the policy behind preventing claim splitting). Thus, if the defendant fails to move for dismissal on the basis of other action pending, then he should not be able to claim merger or bar.

57. To what extent, if any, should evidence extrinsic to the record be admissible to show that a prior judgment went solely on an issue that was not open on the pleadings but was tried by consent pursuant to rule 15(b)?

57. This would be an example of a situtation where the plaintiff would want to amend his pleadings to show exactly what was tried so that res judicata would not be a bar to the same claim. Thus, the extrinsic evidence would be the amendment of the pleadings after judgment.

58. Does a judgment for defendant based on the statute of limitations bar a subsequent suit on the same claim within the same jurisdiction, assuming that plaintiff has recast the suit so as to come under a limitations period that has not yet run? Does such a judgment bar a subsequent suit identical to the first, but rebrought in another jurisdiction that would apply a different statute of limitations?

58. In the same jurisdiction, for the same claim, the second suit would be barred. This is because of the holding in Williamson that a dismissal on the merits of a claim acts as a bar to that same claim under any theory that could have been brought in the first action. If the second theory statute of limitations has not run at the time of judgment on the first action, then it certainly would not have run at the time of filing of the first action, so it could have been combined with the first theory in the first action. However, with respect to bringing the action in the second jurisdiction, the first claim is not barred, even though for dismissals other than the statute of limitations, it would be a bar. The reason is that although the full faith and credit clause normally requires the application of res judicata from one state to another, here it does not because the statute of limitations is based on a choice of law rule. If the second state would apply its own statute of limitations as a choice of law, then the action would proceed normally.

59. If a defendant pleads, as an affirmative defense to a first action by π, grounds that would support a counterclaim in that first action, but does not actually counterclaim (i.e. pleads fraudulent inducement of a contract, but not damages for fraud) is the defendant thereafter precluded from bringing the counterclaim as a new action against π?

59.  As a general rule, a defendant, since he did not choose the court, is not precluded from waiting to bring a counterclaim as an entirely new action. However, there are exceptions to this rule for compulsory counterclaims. If the jurisdiction has a rule like FRCP rule 13(a), and the counterclaim arose out of the same transaction, then he would be precluded from bringing it in a second action. Likewise, if the ∆’s success in the second action would “nullify” the π’s success in the first action (common law preclusion) then there would also be a bar. An example would be if the π wins the first action for breach, the ∆ could not bring a second action for restitution. However, even if the counterclaim were not compulsory, by raising it as an affirmative defense in the first action, its determination is essential to the first action judgment, and so would bring a problem of issue preclusion in the second action.

60. An action is originally filed in a state court that did not have a compulsory counterclaim rule similar to federal rule 13(a). ∆ fails to assert a counterclaim that arises out of the same transaction, and then removes to federal court (where 13(a) does apply) where ∆ wins the main claim. ∆ then brings a second action in the state court. π pleads merger based on the failure to bring the compulsory counterclaim in the first action. The state court rules that since the action was commenced in state court, the federal law of res judicata does not apply, and allows the second action in state court. Would the Supreme Court of the U.S. have jurisdiction to review the final judgment of the state court?

60. §1257 allows the Supreme Court the jurisdiction to review the rulings of the highest court of the state where the validity of a federal statute is at issue, or where there are constitutional concerns. Rule 13(a) is not a statute. However, federal common law of res judicata would apply to the states under the supremacy clause, and thus there is jurisdiction due to the constitutional issue.

61. π brings a personal injury action against ∆ for negligence arising from an auto accident between π and ∆. In the first action, π alleges that ∆ was speeding as a basis for a finding of negligence. π loses. π then brings a second negligence action, based on newly discovered evidence that ∆ was drunk at the time of the accident. What result in the second action?

61. This is direct estoppel of the same issue in the same claim. The court would likely dismiss the action because the “issue” that was determined against π in the first action would likely be defined as ∆’s lack of negligence, rather than merely ∆’s lack of speeding. There is considerable overlap of witnesses, evidence, etc, between the two bases for liability.

62. A sues B for interest on a note. B alleges fraud in the execution of the note (a defense to both the interest and principle obligations) and a later release of the obligation to pay interest (a legally and factually distinct defense only applicable to the interest obligation). Upon trial, A gets verdict and judgment. After maturity, A sues B for the note’s principal. Is the prior judgment conclusive on the question of fraud?

62. Yes. Here, a determination of the insufficiency of both defenses was essential to the judgment in the first action. Had either of the defenses been sufficient, A would have lost the action for the interest. Thus, by the cumulative determination rule, both issues are precluded in a subsequent action.

63. If instead there had been a general verdict and judgment for B in that first action (in the last question), could B make effective use of the judgment in the subsequent action for the principle?

63. No. Since it was only a general verdict, there is ambiguity whether the decision was based on the success of the fraud defense or of the release defense. Since only the fraud defense would be applicable to the subsequent action for principle, it is unclear whether it’s success was “essential” to the judgment in the first action.

64. Why should a judgment on alternative grounds not preclude either of the grounds of judgment from being precluded in a subsequent action?

64. When a judgment rests on alternative grounds, it is unclear which one of the grounds is dicta. Since there is an equal likelihood that either ground is dicta, and thus not essential to the judgment, there is no reason to allow either one to be precluded in a subsequent action.

65. Would there be a different result in the above question if an appeal had been taken and the appellate court expressly affirms on both of the two alternative grounds?

65. Yes. If the court of appeals has heard the case, it may examine the reasoning of the lower court judge and determine whether both of the grounds for judgment are well reasoned. Thus, both grounds would be precluded in a subsequent action.

66. Driver’s car collides with a car driven by T. T sues Driver and loses because of T’s own contributory negligence. Then a passenger in Driver’s car sues T. Is it fair to preclude T on the issue of her negligence?

66. Here, there is no mutuality of estoppel because the passenger, who is not in strict privity with either Driver or T, would not have been bound by the result in the first action had it come out the other way. Thus, this is offensive use of collateral estoppel. T chose the court in the first action, had a full and fair opportunity to litigate, and had the issue of his own negligence determined against him. It certainly was essential to the judgment. Thus, there seems to be no reason why the passenger can not use collateral estoppel to preclude T from asserting that he is not negligent.