Easy Multiple Choice Question from 2006 Civ Pro Exam
Massive Difficult Essay Question from 2007 CivPro Exam

Multiple Choice Question from the 2006 Civ Pro Exam

9.            P (a citizen of New York) files a complaint against D (a citizen of New Jersey) in the Federal District Court for the District of New Jersey on January 1, 2005. P’s complaint is for battery. P alleges that D, a New Jersey state trooper, committed battery in connection with D’s arrest of P in New Jersey on January 2, 2003. P serves D in hand while D is at his office in New Jersey. This manner of service is adequate under New Jersey law. D makes a pre-answer motion to dismiss on the grounds of inadequate service. This motion is denied by the court. D then serves an answer on P. The answer includes the defense that P’s action is outside New Jersey’s 2 year statute of limitations. Under New Jersey law, a statute of limitations is tolled on service. D’s answer also includes a counterclaim against P for breach of an unrelated contract. Which of the following is most accurate?

a.     D’s statute of limitations defense should fail. D waived this defense putting a permissive counterclaim in his answer.

b.     The district court was correct to deny D’s motion to dismiss for inadequate service. Because P’s action is under diversity, state service rules apply.

c.     The district court was wrong to deny D’s motion to dismiss for inadequate service. According to Fed. R. Civ. P. 4(c)(2), “service may be effected by any person who is not a party and who is at least 18 years of age.”

d.     D’s statute of limitations defense should fail because it was waived by not being joined with P’s motion to dismiss for inadequate service.


e.    D’s statute of limitations defense should fail because, under federal law, a statute of limitations is tolled on filing, not service. 

ANSWER

a.     D’s statute of limitations defense should fail. D waived this defense putting a permissive counterclaim in his answer.

Wrong. We talked about waiver of statutes of limitations in connection with counterclaims, but that concerned situations where P sued D within the statute of limitations, and D asserted a compulsory counterclaim outside the statute of limitations. We concluded that the plaintiff waived the right to challenge the compulsory counterclaim on statute of limitations grounds when he made the choice to sue the defendant. There was never a suggestion that the defendant waived the right to assert the defense of statute of limitations against the plaintiff simply by asserting a compulsory counterclaim (much less a permissive one) against the plaintiff. And I can’t think of an argument why that would be a reasonable rule. 

b.     The district court was correct to deny D’s motion to dismiss for inadequate service. Because P’s action is under diversity, state service rules apply.

Wrong. There is a FRCP that governs service, namely Rule 4. Hanna makes it clear that this federal rule applies even in a diversity case. 

c.     The district court was wrong to deny D’s motion to dismiss for inadequate service. According to Fed. R. Civ. P. 4(c)(2), “service may be effected by any person who is not a party and who is at least 18 years of age.”

This is the best answer, although this is a matter of some dispute. The question is whether 4(c)(2) determines who may serve for all cases in federal court or whether state law standards on who may serve are relevant for a plaintiff relying upon FRCP 4(e)(1), which states that service on individuals may be effected “pursuant to the law of the state in which the district court is located, or in which service is effected.” Although this is a matter of debate, this is the best answer, since all the others are clearly wrong. 

d.     D’s statute of limitations defense should fail because it was waived by not being joined with P’s motion to dismiss for inadequate service.

Wrong. Statute of limitations is not one of the waivable defenses mentioned in FRCP 12(g)-(h). 

e.    D’s statute of limitations defense should fail because, under federal law, a statute of limitations is tolled on filing, not service. 

Wrong. Federal tolling law does not apply here. The tolling law that should be used is the law of the state where the federal court is located (that is, New Jersey). This Erie question was answered by Ragan

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