Civil Procedure

2nd (Hard) Multiple Choice from the Midterm Exam

2. In each of these cases the plaintiff brings suit against the defendant in federal court in New York. In which of these cases is the defendant’s motion to dismiss for lack of personal jurisdiction most likely to succeed? Do not assume the defendant has any contacts with New York other than those mentioned.

a. P (a citizen of New York) brings an action against D (a Turkish national domiciled in Turkey) for violations of federal antiterrorism law concerning an attack on Americans in Turkey in which P was harmed. D is served in Turkey.

b. P (a citizen of New York) brings an action against D (a citizen of Pennsylvania) under federal civil rights law concerning the defendant’s arrest of the plaintiff in Buffalo, New York. D is served at his home in Pennsylvania.

c. P (a New York citizen) sues a widget manufacturer, D Corp (incorporated in New York but with its headquarters and all of its employees and factories in Massachusetts). The D Corp ships its widgets to stores in all fifty states. P sues the D Corp under California product liability law for a widget he bought at a store while on vacation in California that harmed him in California.

d. P (a New York citizen) sues a widget manufacturer, D Corp (incorporated in Delaware with its headquarters and all of its employees and factories in Massachusetts). The D Corp ships its widgets to stores in all fifty states. P sues the D Corp under California product liability law for a widget he bought at a store while on vacation in California that harmed him in California. P has the summons and complaint delivered in hand to the D Corp’s chief legal officer while she is in New York on business for the D Corp.

e. P (a New York citizen) sues D (a German subject domiciled in Germany) to determine ownership of 1000 shares in the D Corp (incorporated in New York with its headquarters and all of its employees and factories in Massachusetts). Under New York law, shares in a New York corporation are considered to be located in New York.

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Long Essay Question on Midterm with Model Answer

P (a domiciliary of Vermont) has brought a suit against the D1 Corp and D2 in the Federal District Court for the District of Vermont. P’s suit is for damages that she received from a defective toaster. The D1 Corp, incorporated in Massachusetts, owns and runs a chain of 100 hardware stores, with 40 stores (and 40% of its employees) in Massachusetts, 10 stores (and 10% of its employees) in New Hampshire, and 50 stores (and 50% of its employees) in Vermont. Its headquarters are in Massachusetts. It advertises in states where it has hardware stores. D2 is an individual domiciled in New Hampshire. In New Hampshire, D2, remembering a D1 Corp advertisement he saw there, entered a D1 Corp hardware store and bought a toaster. D2 took it with him to Vermont, as a gift to P. When P used the toaster, it malfunctioned, severely injuring her. P asks for $100,000 in damages from the D1 Corp and D2, who she alleges are jointly liable. The D1 Corp and D2 each bring motions to dismiss for lack of subject matter jurisdiction, personal jurisdiction, and venue.

Briefly:

Should their motions to dismiss for lack of subject matter jurisdiction succeed and why or why not? (6 points)

Should their motion to dismiss for lack of personal jurisdiction succeed and why or why not? (14 points)

Should their motion to dismiss for improper venue succeed and why or why not? (10 points)

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2nd Short Essay Question with Model Answer

Short Essay Question 2 (6 points)

          P (a citizen of New York) sues the D Corp (incorporated in Delaware with its principal place of business in Massachusetts) in federal court in New York. P’s lawyer gives the summons and complaint to the D Corp’s CEO while he is on a plane over airspace in New York. The D Corp makes a motion to dismiss for improper service. Briefly: Should the motion succeed and why or why not?

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1st Short Essay Question on Midterm with Model Answer

Short Essay Question 1 [12 points]

P1 (an American subject domiciled in New York) and P2 (a French subject domiciled in France) together wish to sue D1 (a French subject admitted for permanent residency in the United States and domiciled in New York) in federal court in California under French negligence law for a car accident that occurred in France.

Briefly describe why there is currently no subject matter jurisdiction or personal jurisdiction for their action. (6 points)

Briefly: Could Congress remove these subject matter and personal jurisdiction impediments and why or why not? (6 points)

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1st Multiple Choice Question on Midterm - with answer key

1. In each of these cases the plaintiff or plaintiffs bring suit against D in state court in New York. In which of these cases is D’s attempt to remove the case to federal court most likely to succeed?
    
a.    P (a French subject admitted for permanent residency in the U.S. who is domiciled in New York) sues D (a German subject admitted for permanent residency in the U.S. who is domiciled in New Jersey). P’s suit is for violation of New York negligence law in connection with a car accident in New York. P asks for $100,000 in damages.

b.    P (a citizen of New York), who is a beneficiary of a trust, sues the trustee, D (a citizen of California). P claims that D violated his fiduciary obligations to P under New York trust law by investing in securities that are illegal under federal law.

c.    P (a New York citizen) sues D (French citizen domiciled in France) under New York law for $100,000 in child support that D owes P for care of P’s and D’s children in New York.

d.    P1 and P2 (both citizens of California) own separate lots adjacent to property in New York owned by D (a citizen of New York). P1 and P2 sue D under New York nuisance law, requesting an injunction prohibiting D from building a rendering plant on his property. Alternatively, they ask for $40,000 each, which is the damages they will sustain from the plant’s operation. The cost of D’s abiding by the injunction is $80,000.

e.    P1, a New York citizen, and P2, a California citizen, sue D, a California citizen, for violations of New York negligence law concerning a car accident in New York. P1 asks for $100,000 in damages from D, but P2 asks for only $20,000.

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Old CivPro Exam Questions with Answers

For those interested in old civ pro exam questions with answers, they are available here. I should warn you however that since around 2014 (and especially since 2016) I have not systematically updated the answers in the older posts to take into account changes in the law. As a result some answers will be out of date. For those in my class at William and Mary, some material that is in these old exam questions is not currently covered in my class.

 


Waiving Twiqbal

This issue came up in the review session (I'm afraid I'm not quite sure who brought it up): When is a Twombly-Iqbal (Twiqbal) defense waived by failing to mention it in a timely fashion?  Consider the following two scenarios.

Scenario One: P sues D in federal court.  D brings a motion to dismiss for lack of personal jurisdiction, which the court denies.  D then brings a motion for more definite statement, on the grounds that the pleading standards in Twombly and Iqbal (Twiqbal) have not been satisfied.  Is the defense waived by failing to bring it up in the first motion?

Scenario Two: P sues D in federal court.  D answers the complaint, without introducing the objection that the standards in Twiqbal have not been satisfied.  Later D brings up the Twiqbal defense, perhaps in conjunction with a motion for more definite statement.  Is the defense waived?

If one considers the Twiqbal defense to be, or to be analogous to, a motion to dismiss for failure to state a claim, then it should not be waived in either scenario.  The defense of failure to state a claim can be brought up at any time.  The only exception is that the defense is generally considered waived if it is brought up for the first time on appeal. (In addition, if one fails to bring up failure to state a claim in one's first preanswer motion, and the defense was available at the time of that motion, one cannot bring it up in a second preanswer motion.  But that is no great loss, because one can bring it up in one's answer or later in a motion for a judgment on the pleadings.)

In Twombly the Twiqbal defense was indeed characterized as failure to state a claim.  But in Iqbal the court made clear that the standards in Twiqbal come from the pleading requirements in FRCP 8(a), not from the demands of stating a claim.  One might state a claim and nonetheless be insufficiently specific to satisfy Twiqbal and FRCP 8(a).

So understood, the Twiqbal defense would be waived in Scenario Two, although not Scenario One.  Answering the complaint waives any argument that the pleading standards in FRCP 8(a) were not satisfied  I cannot find a court saying as much, but that is what courts have concluded with respect to the defense that the pleading standards in FRCP 9(b) having not been satisfied. U.S. ex rel. Lam v. Tenet Healthcare Corp., 481 F.Supp.2d 689 (W.D. Tex. 2007); Todaro v. Orbit Intern. Travel, Ltd., 755 F.Supp. 1229 (S.D.N.Y. 1991).

There’s even an argument that the Twiqbal defense is waived in Scenario One. Under FRCP 12(g), “a party that makes a motion under [Rule 12] must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” The only exceptions identified are those in 12(h)(2) (which concerns failure to state a claim and failure to join a necessary party) and 12(h)(3) (which concerns lack of subject-matter jurisdiction).  On this argument, Twiqbal should be treated like the other waivable defenses in FRCP 12(b)(2)-(5) (personal jurisdiction, venue, service, process).  The Twiqbal defense was available when D made his first motion for lack of personal jurisdiction and is therefore waived.


How to dismiss for failure to satisfy Twiqbal?

Jackson Key pressed me on the following problem: Twiqbal pleading standards, the Court has now made clear, come from Fed. R. Civ. P. 8(a)(2) (in particular, the requirement of "showing that the pleader is entitled to relief"). But 8(a)(2) says nothing about dismissal for failure to satisfy these standards. Initially, the proper response is a motion for a more definite statement under 12(e). But what if, after the attempt at a more definite statement, the plaintiff still fails to satisfy Twiqbal? In Twombly, the Court spoke of dismissal for failure to state a claim under Fed. R. Civ. P 12(b)(6), but we now know that's wrong. Stating a claim and satisfying 8(a)(2) are different things.

Fed. R. Civ. P. 12(e) says the following: 

A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

In Sierocinski v. E. I. Du Pont de Nemours & Co., 103 F.2d 843 (3rd Cir. 1939), the trial court relied upon the ability to strike the allegation of negligence that (it thought) failed to satisfy 8(a)(2). After striking the allegation, the complaint failed to state a claim and could be dismissed under 12(b)(6). But courts don't rely on that two-step process anymore. So what is their method of dismissal? I could not find a court saying explicitly, but the same problem  has arisen for a long time with respect to Fed. R. Civ. P. 9(b)'s requirement for heightened pleading concerning allegations of fraud. Here courts simply appeal to 12(e) as the ground for dismissal. E.g. Ianieri v. Monmouth Investments, Inc., 1989 WL 150013 (D.N.J.  December 08, 1989). My guess is that they consider the dismissal to be an "appropriate order." The same should be true of Twiqbal.