A compulsory counterclaim MUST be pled or the claim is lost. A permissive counterclaim is one that does not arise from the same conduct, transaction, or occurrence. A permissive counterclaim may be filed with the answer or asserted in a separate case.
All counterclaims must meet subject matter jurisdiction requirements. Supplemental jurisdiction is ONLY available for compulsory counterclaims. Amending a Complaint: Relation Back Doctrine When a complaint is amended to include a new claim, it relates back to the date of the original filing as long as the new claim arises out of the same transaction or occurrence as the original complaint. When a complaint is amended to include a new defendant, it relates back as long as 1 it involves the same transaction or occurrence 2 the new party knew of the original action within days of filing unless good cause extension 3 the new party knew that they should have been named as the original party, but for mistake in identity AND 4 the original claim was timely filed.
Compulsory Joinder Compulsory joinder allows a current party to force a necessary and indispensable party to join the case. A party is necessary and indispensable when 1 the court cannot afford complete relief without the party 2 there is a danger that the party will be harmed OR 3 there is a possibility of double liability.
Joinder is feasible if 1 there is personal jurisdiction over the party AND 2 joining will not destroy diversity in the case. Where the party is indispensable, but joinder is not feasible, the court may dismiss the case or proceed without the party. Compelled Physical and Mental Examinations CA In CA courts: In any personal injury case, any D may demand one physical examination of the P as a matter of right, IF 1 the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive AND 2 the examination is conducted at a location within 75 miles of the residence of the examinee.
For non-personal injury cases, a party must make a motion to compel an examination. The motion must be made in good faith AND show that the party's health is in controversy. The court will then hold a hearing to determine whether it will issue an order to compel a physical examination. It must occur during the discovery period, but the court may exercise discretion to permit it if it does not prejudice the parties. The scope is broad and includes information that may not be admissible at trial.
Subpoena Duces Tecum Document Subpoena to a Non-Party Where a party serves a subpoena duces tecum document subpoena upon a non-party, the non-party may respond with a motion to quash or a written objection refusing to produce the documents requested. Depositions Without leave of court, a party is permitted to conduct up to 10 depositions on any person or party so long as the deposition is limited to one day of no more than 7 hours AND proper notice is given.
When deposing a party, only reasonable notice must be given to the party. However, when deposing a non-party the non-party MUST be served with a subpoena from the court. Motion for Judgment as a Matter of Law A motion for judgment as a matter of law may be brought after the close of the opposing party's evidence OR at the close of all evidence.
The motion will be granted if the court determines that reasonable people would not disagree on the results of the case when considering the evidence in the light most favorable to the non-moving party. Motion to Dismiss in Federal Court A federal 12 b 6 motion to dismiss alleges that the Complaint has failed to state a cause of action upon which relief can be granted. When making its decision, the court must: 1 consider the facts in the light most favorable to the non-moving party AND 2 only consider the facts alleged on the face of the Complaint.
Law students tend to ignore this skill. Maybe more important. Why is the second skill arguably more important? With that in mind, I highly recommend that you spend time practicing your basic get-it-down-on-paper skills by starting off with some really simple essay questions. These are basic starter questions that I might ask in class, really basic hypos. Final exams are kind of like the Big Money Game, right?
Yes, because there is subject-matter jurisdiction, personal jurisdiction and venue over this case in the Western District of Washington. Yes, because you can sue aliens under federal question jurisdiction. A is wrong, a 2 allows suits against citizens or subjects of a foreign state.
The last sentence of a covers a special case of permanent residents. Since Daphnee is not a permanent resident alien, there would be venue under d. A general statement that an individual would be subject to personal jurisdiction in any district is simply wrong. D is wrong, because the case does not raise any federal question, and because the venue and personal jurisdiction of the court are not established.
Personal jurisdiction was the tough one here, and that is why this was correct instead of "b". Personal jurisdiction could be obtained because she was present in Seattle and could be served personally there, at least.
I decided to indicate that the accident occurred there, to make personal jurisdiction even clearer under Hess v. A tornado destroyed the home of John M. Nationwide Insurance Company, which had sold Mr. Lombardi's homeowner's policy, sent an agent to assess the damage. The agent prepared a written report of the damages and took a written statement from Mr. Lombardi, in order to evaluate the claim and pay him what was covered by the policy.
Lombardi had never had any problem with Nationwide in the 20 years he had purchased policies from them. However, the company paid Mr. Lombardi, and he was not satisfied, so he sued for breach of contract.
He sued in federal court, pursuant to diversity jurisdiction, since he is a citizen of Florida and Nationwide is a Delaware Corporation with its principal place of business in Pennsylvania. During discovery, Mr. Lombardi requested the production of copies of the insurance agent's report and his own statement. Can the insurance company raise the work-product privilege to refuse to produce the documents?
Yes, because they were prepared by the insurer and all such work is protected. No, because they were not prepared by a lawyer. Yes as to the report, but not as to the statement, because a party can always get a copy of his or her statement.
None of the above. Answer: D. The documents are discoverable and not protected by work-product because they were not prepared in anticipation of litigation. C is attractive because even if the privilege I told you in class that I did not care if you called "privilege" or "doctrine" so long as you knew how it was applied applied, the statement is not protected by express application of FRCP 26 b 3 paragraph 2. B is incorrect because Rule 26 b 3 expressly applies to persons other than lawyers, including insurers.
C is incorrect because the work was not prepared in anticipation of litigation. A is just an incorrect legal statement. This was a Rule 26 question. If it had been, the answer would have been "D" anyway, however, the question was about rule 26, going to is looking for an issue that is not there.
Moreover, c 1 's "direct action" exception does not apply here, because "direct action" means an action by a tort victim against the insured's insurance company, instead of against the tortfeasor. Here it is the insured who is suing. In a case before the U. District Court for the Northern District of Florida, the defense filed a timely motion to dismiss for lack of subject matter jurisdiction and venue.
In its answer, the defense did no raise any additional 12 b defenses. After the period for pleading and amendment had passed, but before the scheduled trial, the party filed a motion to dismiss for lack of personal jurisdiction. Is the motion timely? Yes, because jurisdiction is a defense that cannot be waived and can be raised at any time.
No, because lack of personal jurisdiction had to be raised in the motion to dismiss. Yes, because if you raise venue and subject-matter jurisdiction, it is implied that you also object to personal jurisdiction. Yes, because this motion can be made any time before trial. A sounds good, but it is wrong for two reasons, it is lack of subject-matter jurisdiction that can be raised at any time, and personal jurisdiction is a disfavored defense that is waived if not raised, FRCP 12 h 1.
B is correct by application of Rule 12 g. C is an incorrect legal statement. D might look good if you just read rule 12 d , but remember that this rule applies only if the defense has been properly preserved, which this one was not.
Therefore, B, as the only alternative that recognized the failure to preserve the defense by not raising it in the first motion, was correct. The actions of the police can be argued to have violated Mr. Such a claim would be both reasonable and substantial.
The facts giving rise to this claim occurred in Los Angeles. All the officers involved live in Simi Valley, a suburb of Los Angeles, and are citizens of California.
After this ugly incident, Mr. He then sues the officers and the City of Los Angeles in U. District court for the District of Arizona, he claims federal-question jurisdiction. None of the defendants can be found in Arizona. The defendants have timely moved for dismissal, or any other appropriate relief, for all pertinent Rule 12 b defenses.
Should the court hear the case? Yes, because the federal courts have original federal-question jurisdiction over this case. Answer: A. The court should not hear the case, it should grant dismissal for lack of personal jurisdiction, there are no minimum contacts and certainly no general jurisdiction over any of the defendants in Arizona. Additionally, the court should dismiss for lack of venue, or alternatively transfer the case to California, but it should not hear it.
The acts occurred in Los Angeles, all the defendants are from Los Angeles, and none can be found in Arizona. The proper place to file would be the U. Lack of personal jurisdiction and venue are reasons for the court not to hear the case, even if it has subject matter jurisdiction, which it would under federal question, thus B is incorrect. Even if the case could be brought under diversity, the red herring of C, the lack or personal jurisdiction and the venue defect would prevent the Arizona court from accepting the case, upon motion, and one has been made.
Moreover, jurisdiction must be pleaded, and Mr. D is inapplicable, since A is the right answer. Some students thought that venue was provided by e , based on the residency of the plaintiff.
Even if it had applied, the correct answer was still A, the court should not hear the case because it lacked personal jurisdiction over the defendants. However, that provision applies to cases involving employees of the US government, not the state officers involved here. As to them, we still use b. Since the defendants cannot be found in Arizona, are not citizens of Arizona, and the acts did not occur in Arizona, the court lacks venue as well.
Thomas Tank is seriously injured in an automobile accident caused by the negligence of one M. Tank is a citizen of Shining, Texas, and Mr. Conductor is a citizen of Station, Massachusetts. The accident occurred on Interstate 75, in Alachua County, Florida. Conductor is insured by the Zodor Insurance Company, a corporation incorporated in Delaware, with its principal place of business in Florida.
Thomas sues Mr. Conductor and Zodor Insurance Company in the U. District Court for the Northern District of Florida. Can the court hear this case?
No, for lack of personal jurisdiction, so it would have to dismiss if the parties file the appropriate motion.
No, because the Zodor Insurance Company is considered a citizen of Florida in this case. A is incorrect because there is personal jurisdiction over the driver under Hess v. Pawlowski, and over Zodor because it is a citizen of Florida and is subject to general jurisdiction here. C is wrong for failing to mention jurisdictional amount. D is also incorrect. The insurance company is indeed a citizen of Florida, but so what? FBI agents conduct illegal wiretaps of members of Ayuda, a group that supports Salvadoran immigrants seeking political asylum in the United States.
They also break into their offices in Yuma, Arizona and steal files and plant listening devices. The scheme is uncovered after CNN airs an investigative report in which these acts were disclosed.
The illegal activities were carried out by a "special task-force" created in the FBI field office in Dallas, Texas. Ayuda is based in Yuma, their only offices are there and all members are Arizona citizens.
All the agents involved are citizens of Texas. Members of Ayuda have a substantial claim against these agents for violation of their federal civil rights. Where can their complaint be filed? In any US District Court, because this is a federal question case. A is incorrect.
There is indeed federal question jurisdiction, a substantial claim arising under the constitution and laws of the United States. There would be venue in Arizona under e 2 , which does apply here because the defendants are federal officers, but the facts of the question would produce the same result under b as well. Arizona is where substantial part of the acts from which the claim arose occurred. There is a possible personal jurisdiction problem in Arizona, which is normally solved by the rule that a single tortious act is enough to establish minimum contacts, and you were instructed to assume that states had extended long-arm statutes to their constitutionally allowable extreme.
The problem is the word "only". B is incorrect. There is federal question jurisdiction, venue can easily be based on e 1 since all defendants are from there, and perhaps on e 2 , since planning was also done in Dallas; there is also even stronger personal jurisdiction, since all the agents are Texans, but again, "only" makes it incorrect.
C is just wrong, because, as I emphasized a lot, you need subject matter jurisdiction, personal jurisdiction and venue. D is correct, there is subject-matter jurisdiction, there is venue and there is personal jurisdiction in both. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
The question asked determines the issues raised, read it carefully and answer the question I asked. Civil procedure is a broad and complex course, I have crafted the questions narrowly, do not waste your time covering issues that the question does not require you to resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the question. Citizenship and Residence. For purposes of this part, you should assume that citizenship and residence are treated equally.
Since this is an open-rule exam, citation to the appropriate rule and section of title 28 should be made. Case citations will be judged on a "close-enough" basis. Essay question no.
He alleges that Bob's is hurting his shoe business by having courteous sales persons who sell shoes by telephone order, to Chicago-area customers. Bob's is a Corporation, incorporated in the state of Delaware, with its principal place of business in Tampa, Florida. Orders are received in a phone bank in Florida and shipped from Florida. He claims that jurisdiction over the case is based solely upon Diversity of Citizenship. Bundy claims compensatory and punitive damages against Bob's. Although competition is the subject of federal statutes, Mr.
Bundy has not sued thereunder.
.Conductor is insured by the Zodor Insurance Company, a corporation incorporated in Delaware, with its principal place of business in Florida. Notice pleading, Conley v. The Blaines then impleaded Evinrude. C and D are incorrect because Mr. Finally, I studied how the relevant facts and concepts were argued in support of the judge's conclusions. Cramer to sue Mr.
.Bundy claims compensatory and punitive damages against Bob's. Conductor is a citizen of Station, Massachusetts. Curtiss, since under 28 U. The scope is broad and includes information that may not be admissible at trial. Anytime, anywhere. No, because the Zodor Insurance Company is considered a citizen of Florida in this case.
When a complaint is amended to include a new defendant, it relates back as long as 1 it involves the same transaction or occurrence 2 the new party knew of the original action within days of filing unless good cause extension 3 the new party knew that they should have been named as the original party, but for mistake in identity AND 4 the original claim was timely filed. Personal jurisdiction was the tough one here, and that is why this was correct instead of "b".
Sign up for free and study better. A permissive counterclaim is one that does not arise from the same conduct, transaction, or occurrence.
Supplemental Jurisdiction Supplemental jurisdiction may be used to bring a claim in federal court that would not otherwise meet the requirements of subject matter jurisdiction either diversity or federal question. The motion was timely filed. District Judge in charge of this case. D is correct, there is subject-matter jurisdiction, there is venue and there is personal jurisdiction in both.
Lombardi, and he was not satisfied, so he sued for breach of contract. The effect of adding Evinrude will be discussed below.
Students who followed the venue analysis also received full credit. All counterclaims must meet subject matter jurisdiction requirements. After this ugly incident, Mr. Answer: C. I believe in examination review.
Moreover, c 1 's "direct action" exception does not apply here, because "direct action" means an action by a tort victim against the insured's insurance company, instead of against the tortfeasor.
Even if impleader had been available, the answer should still be "b". The court denied this motion. She has asked you to draft a memorandum suggesting how she should craft her opinion deciding Bob's Motion to Dismiss the punitive damages allegations. There is no diversity between the parties, as discussed above, so there is no independent subject-matter jurisdiction. Counterclaims A counterclaim is a claim a D asserts against a P who is suing him.
Penmanship was also good, and I thank you for it. The Blaines had leased several boats from Evinrude, including the one involved in this case. D is also incorrect. This is a two-part analysis: 1 Is the exercise authorized by part a of the Act? However, he has moved the court to compel the joinder of his hair dresser, one George "Scissors" Costanza, a citizen of New York. The conflict with the federal rule cannot be avoided.