Multiple Choice from 2008 CivPro Exam

With updated answers:

6. P (a domiciliary of New York) is suing D (a domiciliary of New Jersey) in the federal court for the District of New Jersey for violations of his federal civil rights that occurred during D’s arrest of P in New York. P has no other contacts with the state of New Jersey. P asks for $10,000 in damages. In his answer, D asserts a state-law battery action against P for some severe damages he sustained in a brawl that P and D got into three months before the arrest. D asks for $125,000. D files the answer with the court and mails it to P’s attorney. Although P’s civil rights action was brought within the statute of limitations, D’s battery action would have been barred on statute of limitations grounds if it had been brought as an independent action at the time D filed his answer. Which of the following is most accurate?

a. P should be able to get D’s battery action dismissed for lack of subject matter jurisdiction.

b. P should be able to get D’s battery action dismissed for improper service.

c. P should be able to get D’s battery action dismissed for improper venue.

d. P should be able to get D’s battery action dismissed for lack of personal jurisdiction.

e. D’s battery action is barred on statute of limitations grounds.

ANSWER

a. P should be able to get D’s battery action dismissed for lack of subject matter jurisdiction.

Wrong. Although D’s permissive counterclaim does not have supplemental jurisdiction (since it is not part of the same constitutional case or controversy as P’s federal civil rights action against D), it is itself an adequate diversity action under 1332(a)(1).

b. P should be able to get D’s battery action dismissed for improper service.

Wrong. Rule 5, not Rule 4(e), governs the service of counterclaims on plaintiffs. We discussed this in class.

c. P should be able to get D’s battery action dismissed for improper venue.

Wrong. The majority view is that even permissive counterclaims do not have to satisfy the venue statute. We discussed this in class. It is true that there is a minority view that dismissal is proper, making this answer somewhat accurate. But answer e is most accurate.

d. P should be able to get D’s battery action dismissed
      for lack of personal jurisdiction.

Wrong. The majority view is that even permissive counterclaims cannot be dismissed by plaintiffs for lack of PJ. We discussed this in class. It is true that there is a minority view that dismissal is proper, making this answer somewhat accurate. But answer e is most accurate.

e. D’s battery action is barred on statute of limitations
      grounds.

Correct. In our discussion of statutes of limitations for counterclaims, there were cases identified where a defendant’s counterclaim would be saved from dismissal on statute of limitations grounds, even though it would have been outside the applicable statute of limitations if brought as a separate lawsuit, provided that it would have been within the statute of limitations if it had been brought as a separate lawsuit at the time that the plaintiff brought his original action against the defendant. However there was no suggestion that a permissive counterclaim would be saved in this fashion. This is therefore the most accurate answer.