Afrikan Spir and Josephine Meckseper
Multiple Choice Question from the 2006 Civ Pro Exam

Easy Multiple Choice Question from 2006 Civ Pro Exam

6.            P (a citizen of New York) sues D (a citizen of New Jersey) for $80,000 under New York battery law in the Federal District Court for the Southern District of New York concerning a brawl between P and D that occurred in New York City. D joins his insurer I (a New York corporation with its principal place of business in New Jersey) under Rule 14. Which of the following is most accurate?

a.     There is federal subject matter jurisdiction for both P’s action against D and D’s action against I.

b.     D’s action against I should be dismissed for lack of federal subject matter jurisdiction. P’s action against D has federal subject matter jurisdiction and can remain in federal court.

c.     D’s action against I should be dismissed for lack of federal subject matter jurisdiction. Furthermore, P’s action against D should also be dismissed for lack of federal subject matter jurisdiction, since it is “contaminated” by D’s action against I.

d.     P’s action against D should be dismissed for lack of federal subject matter jurisdiction because P is an in-state plaintiff. Once P’s action is dismissed, D’s action against I will also have to be dismissed for lack of federal subject matter jurisdiction.

e.     P’s action against D should be dismissed for lack of federal subject matter jurisdiction because P is an in-state plaintiff. Once P’s suit is dismissed, the court may at its discretion choose to retain or dismiss D’s action against I.

ANSWER

a.     There is federal subject matter jurisdiction for both P’s action against D and D’s action against I.

Correct. P’s suit against D is an adequate diversity suit under 28 USC 1332. And D’s impleader has supplemental jurisdiction under 28 USC 1367. 

b.     D’s action against I should be dismissed for lack of federal subject matter jurisdiction. P’s action against D has federal subject matter jurisdiction and can remain in federal court.

Wrong. D’s impleader has supplemental jurisdiction under 28 USC 1367. 

c.     D’s action against I should be dismissed for lack of federal subject matter jurisdiction. Furthermore, P’s action against D should also be dismissed for lack of federal subject matter jurisdiction, since it is “contaminated” by D’s action against I.

Wrong. D’s impleader has supplemental jurisdiction under 28 USC 1367. Furthermore, even if it didn’t, it would not contaminate P’s action against D. The contamination theory applies only to actions between plaintiffs’ actions against defendants. 

d.     P’s action against D should be dismissed for lack of federal subject matter jurisdiction because P is an in-state plaintiff. Once P’s action is dismissed, D’s action against I will also have to be dismissed for lack of federal subject matter jurisdiction.

Wrong. It is true that in-state defendants can’t remove under diversity (see 28 USC 1441), but the same requirement does not apply to in-state plaintiffs suing under diversity (although arguably it should). So this is wrong. But it is right in saying that if P’s suit against D did not have diversity jurisdiction, then D’s action against I would have to be dismissed, since it would no longer have supplemental jurisdiction. 

e.     P’s action against D should be dismissed for lack of federal subject matter jurisdiction because P is an in-state plaintiff. Once P’s suit is dismissed, the court may at its discretion choose to retain or dismiss D’s action against I.

Wrong. First of all, in-state plaintiffs can sue under diversity (see above). Second, if it were true that P’s suit against D did not have diversity jurisdiction, then D’s action against I would have to be dismissed, since it would no longer have supplemental jurisdiction. 


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