Essay Question from 2004 CivPro Exam
Easy Essay Question from the 1999 CivPro Exam

Multiple Choice Questions from the 2010 CivPro Exam

With updated answers:

Question 6)    

P (a citizen of New York) is suing D (a citizen of Ohio) for state law negligence in the Federal District Court for the Southern District of New York in connection with a car accident that occurred in Ohio. D has no contacts with the state of New York. P has a process server serve D in hand with a summons and complaint at his home in Ohio. Which of the following statements about D's waiver of the defense of lack personal jurisdiction is most accurate?

a.         If D’s first response is an answer that includes the defense of failure to state a claim, the defense of lack of personal jurisdiction is waived.

b.         Assume D’s first response is an answer that omitted the defense of lack of personal jurisdiction. Assume also that D amends the answer 19 days after serving it on P to include the omitted defense, without asking the leave of the court. The defense is not waived.

c.         Assume D’s first response is a preanswer motion that omitted the defense of lack of personal jurisdiction. If D is allowed by the court to amend the motion to include the omitted defense the day after serving the motion on P, the defense is not waived.

d.         Whether D’s defense of lack of personal jurisdiction is waived must be answered by looking to New York state law.

e.         D’s defense of lack of personal jurisdiction cannot be waived. Because it is unconstitutional for a federal court to assert personal jurisdiction over D, D can bring up the defense any time – including on appeal. In addition, a court must dismiss P’s action sua sponte if it notices that the court lacks jurisdiction over D.

ANSWER

a.         If D’s first response is an answer that includes the defense of failure to state a claim, the defense of lack of personal jurisdiction is waived.

Wrong. See FRCP 12(b): "No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion."

b.           Assume D’s first response is an answer that omitted the defense of lack of personal jurisdiction. Assume also that D amends the answer 19 days after serving it on P to include the omitted defense, without asking the leave of the court. The defense is not waived.

Correct. We discussed this in class. See in particular FRCP 15(a)(1)(a) AND 12(h)(1)(B)(ii).

c.         Assume D’s first response is a preanswer motion that omitted the defense of lack of personal jurisdiction. If D is allowed by the court to amend the motion to include the omitted defense the day after serving the motion on P, the defense is not waived.

Wrong. Amendment as a matter of course is the only way the PJ defense can be saved if omitted and only pleadings can be amended as a matter of course.

d.         Whether D’s defense of lack of personal jurisdiction is waived must be answered by looking to New York state law.

Wrong. The matter is dealt with in Federal Rules of Civil Procedure (specifically 12(g)-(h)). Since these rules are valid under the Rules Enabling Act, they apply whatever state law on the matter is, even in diversity cases.

e.         D’s defense of lack of personal jurisdiction cannot be waived. Because it is unconstitutional for a federal court to assert personal jurisdiction over D, D can bring up the defense any time – including on appeal. In addition, a court must dismiss P’s action sua sponte if it notices that the court lacks jurisdiction over D.

Wrong. The defense of PJ can be waived, indeed it is easily waived.

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