In addition to occasional posts on my own research, this blog is mostly for written responses to student questions. (Most questions I'll answer orally, but for particularly interesting or widespread questions, I like to provide written responses.) Later in the semester, you should also find it useful to look at some of the old exam questions and answers posted here, to anticipate what the exam will be like. But some of these old questions address material that I won't discuss this semester. Struggling with them won't be helpful. In addition, I discourage you from reading any of these old exam questions until we are sufficiently advanced in the course. I'll let you know which ones to look at when the time comes...
Old Civil Procedure Exams
Here are some questions for my current civ pro class that are on, at least in part, our favorite topic, supplemental jurisdiction... (with a few on joinder and necessary parties).
For this year's civpro class: Here are many essay and multiple choice questions and answers that are on material that we have covered up to this point. Note: recent SCt cases, such as Daimler may not be taken into account in the model answer.
Just a note for those not in my class who are looking for civ pro exam questions. They are all available here. (Warning for those in my class: not all of these are suitable for you - some cover material we will not do this semester.)
Here is a multiple choice question on SMJ and an essay question on PJ, SMJ and Venue that you should be able to do now (or by the end of class on Monday). We haven't gotten to venue yet, but it is easy enough that you don't lose much by ignoring it. [NOTE: I pared back the answer to the essay question a bit. As it was there was much more there than even the very best answer would need.]
2 P, a citizen of Ohio, files a complaint in the Federal District Court for the Eastern District of Michigan against General Motors (a citizen of Michigan and Delaware) and Ford (a citizen of Michigan and Delaware) on behalf of a class of 100 million American urban dwellers, alleging that the defendants violated the Sherman Antitrust Act (a federal statute) and Michigan state antitrust law by conspiring to restrain the development of automobile air pollution mechanisms, thereby polluting the atmosphere of North America and causing the plaintiff class damages of $100 billion dollars (i.e. $1000 for each member of the plaintiff class). The defendants are properly served. Which of the following is most accurate?
a. The Michigan state antitrust actions should be dismissed for lack of federal subject matter jurisdiction, since aggregation of plaintiffs’ claims is not allowed to meet the jurisdictional minimum. (Ignore the recently-enacted jurisdictional provisions of the Class Action Fairness Act for this answer.)
b. Both the federal and the state antitrust actions should be dismissed for lack of federal subject matter jurisdiction, since aggregation of plaintiffs’ claims is not allowed to meet the jurisdictional minimum. (Ignore the recently-enacted jurisdictional provisions of the Class Action Fairness Act for this answer.)
c. If P has offered no evidentiary support of his factual allegations of an antitrust conspiracy, his complaint should be dismissed for failure to state a claim.
d. P’s complaint should be dismissed for failure to satisfy the pleading requirements in Rule 9(b).
e. P’s Sherman Act action should be dismissed for failure to state a claim, since conspiracy to restrain the development of automobile air pollution mechanisms is not restraint of trade of the sort encompassed by the Sherman Act.
1. P files a complaint against the D Corp. and its President, X, in the Federal District Court for the Southern District of New York. P’s suit is for violation of federal securities laws. Four days later P has a process server deliver a copy of a summons and the complaint in hand to X while he is at his office in Philadelphia, Pennsylvania. Both the D Corp. and X make motions to dismiss for insufficient service. Which of the following is most accurate?
a. The D Corp.’s motion should succeed, but not X’s.
b. X’s motion should succeed, but not the D Corp.’s
c. Neither the D Corp.’s nor X’s motion should succeed.
d. One cannot know whether the D Corp.’s or X’s motion should succeed without knowing New York law governing service.
e. One cannot know whether the D Corp.’s or X’s motion should succeed without knowing New York and Pennsylvania law governing service.
Essay Question 1.
D lives in New York. He owns and runs a business, under the name “D Diamonds,” which sells diamonds over the internet. D Diamonds is not incorporated. (As a result, D is personally liable for D Diamonds’ debts.) D runs D Diamonds out of an office in New Jersey. He has one employee, X, who, like D, lives in New York and works in the New Jersey office. D describes X as an “assistant manager.”
The P Corp, a large diamond distributing company, is incorporated in Delaware. Its main office and headquarters are in New Jersey, but all its diamonds are kept in a number of safes in a small guarded storeroom in New York. The P Corp has appointed the New Jersey Secretary of State as its agent for service of process, as a condition for a license to do business in the state.
D has had a long-standing relationship with the P Corp and D commonly orders diamonds directly from the P Corp’s New York storeroom. In a phone call from D’s home in New York to the P Corp’s storeroom, D ordered $200,000 worth of diamonds. D paid a $100,000 deposit by phone, using his personal credit card. Delivery was to be to the D Diamonds office in New Jersey. The P Corp shipped the diamonds, but they were stolen in New York soon afterward, before they made it to New Jersey. D refused to pay the remaining $100,000 for the diamonds.
The P Corp filed a complaint in the Federal District Court for the District of New Jersey for state-law breach of contract, naming “D, doing business as D Diamonds” as the defendant. The complaint asked for the remaining $100,000 owed for the diamonds. The P Corp argued that D Diamonds had ownership of the diamonds at the moment they left the P Corp storeroom in New York. Since ownership was transferred, D Diamonds (and therefore D) was obliged to pay in full.
Service of the summons and complaint was upon X at X’s home in New York. D answered, alleging that he was not liable for the remaining $100,000, because ownership of the diamonds was never transferred. Transfer would have occurred only if there had been successful delivery of the diamonds to D Diamonds’s New Jersey office. D also included in the answer the defenses of lack of personal jurisdiction, lack of subject matter jurisdiction, and insufficient service of process, and a counterclaim for the return of the $100,000 deposit.
In its reply, the P Corp offered the following defense to D’s counterclaim: The counterclaim could not succeed, the P Corp argued, because D had failed to satisfy a New Jersey statute that states that any company doing business in New Jersey “may maintain an action in any of the courts of this state” only if it has appointed the New Jersey Secretary of State as its agent for service of process. D had never appointed the New Jersey Secretary of State as its agent for service of process. Should the P Corp’s defense to D’s counterclaim succeed? Should D’s defenses of lack of personal jurisdiction, subject matter jurisdiction, and improper service succeed?
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.