Civ Pro

Front 1

Billy sues Potter for interference with advantageous relations, after Potter gets him fired from his job by insinuating that he is incompetent. Potter responds by filing a motion to dismiss the claim for failure to state a claim upon which relief can be granted (rule12b6) arguing that the state does not recognize a claim for interference with advantageous relations. While this motion is pending, 3 months later, Billy files an amendment to his complaint to add slander. He does not seek leave to amend from the court. Is this amendment proper?

Back 1

Yes. Under Rule 15(a) a plaintiff may amend the complaint once as a matter of course before the responsive pleading is served. A motion to dismiss is not responsive pleading, but a pre-answer motion. (compare rules 7a (pleadings) and 7b (motions))

Front 2

Billy sues potter for interference with advantageous relations, after potter gets him fired from his job by insinuating that he is incompetent. 6 months after potter files his answer, and 4 months before discovery deadline, billy moves to amend the complaint to add a claim for slander. Potter's counsel opposes the amendment on the ground that Billy's lawyer should have realized the statements were slanderous and should have included it in the original claim. How should the judge rule on the motion to amend?

Back 2

The statements alleged there should suggest to any competent lawyer that a slander claim could be pleaded as well. However, the court will likely allow the amendment anyway because the spirit of the rules is to allow cases to be litigated on the merits, not to rigidly confine the parties to their original pleadings. Rule 15a allows amendments to be granted when justice so requires. The court is unlikley to punish Billy for his counsel's mistake especially since discovery is still going on. Adding a new theory would not prejudice potter. Also, the discovery that has already taken place probably reveals facts applicable to both claims.

Front 3

Assume A sues B for slander and the statute of limitations has not expired. A month before the discovery deadline expires, A files an amendment to his complaint to add a claim for slander for a second defendant C and the judge denies it because it was offered so late in the litigation. Can A now bring a separate action against C?

Back 3

Yes because the statute of limitations has not passed. Rule 20(a) allows but does not require the joinder of defendants based on a single transaction and res judicata only bars suit against a party who was sued before.

Front 4

Assume that the statute of limitations has passed and A files an amendment to his complaint to add a second defendant, but he waits until the last month to do so. Could the judge grant this amendment?

Back 4

The judge could grant the amendment under Rule 15(c)(3) but it is unlikely if the defendant did not know about the action before the period for service of process ran or that he is added due to a mistake in the proper defendant.

Front 5

In 2005 A sues B for defamation arising from a heated argument in 2002. The statute of limitations period for defamation is 3 years. A then amends his complaint to add a claim for intentional infliction of emotional distress which arises from the same argument. The statute of limitations period for IIED is 2 years and has passed. Should the judge grant the amendment or B’s motion to dismiss the claim?

Back 5

The judge should grant the motion to dismiss to the claim. Rule 15c2 says that the amendment must relate back to the original claim, which was filed in 2005. The cut off date for IIED would have been 2004. Even if the IIED claim was in the original complaint, it still would have been too late.

Front 6

A sues B in because of an event in September 2002. B answers the complaint on July 15, 2005. Then in December 2005 B moves to amend his answer to add a counter claim arising from the same transaction. The statute of limitations is 3 years. Can he do so?

Back 6

Rule 15(c)(2) would allow this amendment because A should not be surprised that a defendant may also have claims arising from the same transaction, thus he has adequate notice to gather evidence both to prove his own claim and to defend against counterclaims that arise from the transaction as well.

Front 7

A is driving negligently with B as a passenger and crashes into C. C sues A, but after the statute of limitations period passes he discovers that B was foolin around and had grabbed the wheel causing it to crash. B knew about the lawsuit and feared litigation. Can C amend his complaint to add B as a defendant?

Back 7

Under 15(c)(3) the party may be added if they knew but for a mistake concerning the identity of the proper party that the action would have been brought against her. A mistake about who was negligent is different from a mistake about identity. There was no mistake when C sued A for negligence because he is also a proper party.

Front 8

A is arrested and beated up by 4 cops. He sues the police but is only able to identify one officer, and names 3 others as unknown members of the police department. After discovery and the statute of limitations period, A learns of the 3 other officers names and moves to amend his complaint. Assuming these officers knew about this suit, does the amendment relate back?

Back 8

most courts allow the amendment even though there was not a mistake of identiy but rather an absence of knowledge of thier names.

Front 9

David files a complaint for assault against Goliath. Goliath files a timely motion to dismiss for insufficent service of process. Several months later the judge denies the motion. Can goliath, after being notified of the denial, now answer the complaint, responding to the merits of the allegations?

Back 9

Yes.
Rule 12b allows him to assert certain preliminary defenses. If the pre-answer motion is denied, however, the defendant must then file an answer.
Rule 12(a)(4) requres an answer within 10 days after he receives notice of denial.

Front 10

David files a complaint for assault against Goliath. Goliath files a timely motion to dismiss for insufficent service of process. Several months later the judge denies the motion. Can goliath, after being notified of the denial, now move to dismiss for lack of personal jurisdiction?

Back 10

No. Rule 12(g) requires that avialable all pre-answer motions defenses be made at the same time.

Front 11

David files a complaint for assault against Goliath. Goliath files a timely motion to dismiss for insufficent service of process. Several months later the judge denies the motion. Can goliath, after being notified of the denial, now answer, including the lack of personal jurisdiction defense in the answer?

Back 11

No. Rule 12(h)(1)(A) provides that if defendant has already raised a pre-answer motion defense, he cannot now include a different defense in his answer.

Front 12

David files a complaint for assault against Goliath. Goliath files a timely motion to dismiss for insufficent service of process. Several months later the judge denies the motion. Can goliath, after being notified of the denial, now answer, raising the defense that the complaint fails to state a claim upon which relief can be granted?

Back 12

Yes. the 12b6 objection may be raised in the answer even though it was ommitted from the pre-answer motion. Rule 12(h)(2) expressly provides that this defense may be raised in any pleading permitted under rule 7(a). And an answer is permitted under rule 7(a).

Front 13

David files a complaint for assault against Goliath. Goliath files a timely motion to dismiss for insufficent service of process. Several months later the judge denies the motion. Can goliath, after being notified of the denial, now move to dismiss for lack of subject matter jurisdiction?

Back 13

Rule 12(g) provides that all 12(b) defenses must be made at one time "except as provided in subdivision 12(h)(2)" Rule 12(h)(3) provides that the objection of subject matter jurisdiction may be raised at any time.

Front 14

After Goliath's motion to dismiss for improper service is denied, he answers the complaint. Can he inclulde a defense that plaintiff has given him a signed release from liability on all claims arising out of the alleged ?

Back 14

Yes. This is not one of the preliminary defenses singled out in rule 12b for special treatment. It is an affirmative defense on the merits to the plaintiff's claim wihch properly should be raised in the answer.

Front 15

Suppose Goliath makes no pre-answer motions and answers the complaint. In his answer can he include a motion for a more definite statement?

Back 15

No. The purpose of this motion is to provide the defendant of a clear statement of the allegations so that he can meaningfully respond to them. Rule 12 (c) requires that he make this motion before a responsive pleading.

Front 16

After the plaintiff complies with a 12(e) motion for a more definite statement, may the defendant file a second motion to dissmiss for failure to state a claim?

Back 16

Yes. Because this defense was not previously available, rule 12(g) does not apply because he couldnt figure out what the plaintiff's complaint was alleging.

Front 17

Plaintiff undergoes heart surgery and his condition worsens. The surgery does not always improve a patient's function, but usually does. Can plaintiff sue the doctor for negligence and depose her to determine whether plainitff has a claim?

Back 17

Probably not. Rule 11(b)(3) certifies that a pleading has evidentiary support. Although the second part of Rule 11(b)(3) allows the assertion of factual allegations on information and belief that they are likely to reveal evidentiary support after reasonable opportunity for further discovery, this permissible standard may not be met here because plaintiff has nothing but a sense of outrage and disappointment and nothing to support a claim of malpractice.

Front 18

Can a plaintiff depose someone prior to a lawsuit to determine whehter the facts support a claim?

Back 18

No. Rule 27 allows pre-suit depositions but only in circumstances where it will not be obtainable later. For example, a witness is about to embark on a space mission or a witness is about to die.

Front 19

Plaintiff is injured by some electronic hedgeclippers and sues for negligent design. In his request for production, he asks defendant manufacturer to produce all written warnings provided to users. The defendant objects on the basis that the warnings are not relevant to a claim for negligent design, but rather to a claim for negligent failure to warn. Is this objection valid?

Back 19

Probably. Rule 26(b)(1) authorizes discovery of any information relevant to the claim. Therefore, this information is likely not discoverable. In fact, it is likely that plaintiff is seeking this information to find out if they can amend their complaint to add a new claim.

Front 20

when plaintiff files suit, defendant responds with a motion to dismiss for lack of personal jurisdiction. plaintiff sends interrogatories to defendant inquiring about its business contacts with the forum state and the manner in which the product being litigated entered the state. Must defendant answer the interrogatories?

Back 20

These interrogatories are relevant to the court's jurisdiction and not to the merits of the case, therefore they are allowed by 26(b)(1) because plaintiff needs this information to defend the motion.

Front 21

when plaintiff files suit, defendant responds with a motion to dismiss for lack of personal jurisdiction. plaintiff sends interrogatories to defendant inquiring about the negligent design of its product and complaints from consumers. Must defendant respond?

Back 21

Generally the fact that a defendant raises a jurisdictional objection to an action does not suspend the right of the parties to take discovery on the merits. Defendant could, however, move for a protective order, asking the court to stay discovery on the merits of the claim until its jurisdictional objection has been resolved.

Front 22

Defendant is sued for injuries suffered in an accident. Defendant was very drunk at the time. Defendant tells his counsel that he had many drinks before driving and asks the lawyer not to tell because of the attorney client priviledge. The plaintiff's counsel then sends interrogatories asking if defendant had been drinking. Is the lawyer compelled to answer this honestly?

Back 22

Yes. The attorney client priviledge only applies to communications between the parties and not the facts.

Front 23

Before the collapse of a defendant's bridge, defendant routinely had Bob perform stress tests on the supports. Plaintiff seeks deposition of Bob. Defendant objects saying he is a non-testifying expert and therefore cannot be deposed absent exceptional circumstances. Is this objection valid?

Back 23

No. Bob was doing what was required through his course of employment. Had bob been hired in anticipation of litigation, then he would not be able to be deposed.

Front 24

Suppose bob routinely inspected defendant's bridge before its collapse, and then bob hires him as an expert witness in anticipation of litigation. Can defendant object to his deposition on the basis that he is a non-testifying witness?

Back 24

No. The fact that defendant hired him after the collapse does not immunize him from being a fact witness before the collapse.

Front 25

P is injured when his baseball glove breaks while he is fielding a vicious grounder. He sues D, glove company, for negligent manufacture of the glove. Court renders verdict for D. P then tries to bring a second suit for strict liability. Is this suit barred by res judicata?

Back 25

Yes. Res judicata bars not only those claims that were asserted in the first suit, but also any others arising out of that transaction that could have been asserted but were not. Here, P has simply switched theories of relief and sued again based on the same incident complained of in the earlier suit.

Front 26

P sues D for damages of impaired vision and pain from an injury and recovers $10,000. 3 years later, he develops migraine headaches which his doctor tells him is a result of his injury. Can P bring another suit for these damages?

Back 26

Although these damages were unknown at the time of the first suit, courts generally reject relitigation of such claims because of the finality of the judgment. Plaintiffs are requried to recover for all damages in the original action including those suffered before trial and those reasonably lilkely to ensue.

Front 27

P has a contract with D in which he is to be paid 10% royalties each year. During the first contract year, D only pays 5%. P sues and wins. During the second year, D again pays only 5%. P sues again and D argues res judicata bars this second action. Is D right?

Back 27

No. Although the two suits arise out of a single contract, at the time of the first suit, P did not have a claim for the second year's royalties. The separate breaches in successive years are different occurences that may be sued on separately.

This would not be true however if P waited until the second year to sue. At that point he must sue for them all as a single debt that has acrrued.

Also, collateral estoppel will bar relitigation of issues that were litigated and decided in the first suit, and D will be estopped from claiming that the rate should be 5% in the second action.

Front 28

P sues D to collect under a contract. D wins on the basis that P had breached his contract. D then sues P for damages from this breach. Is this suit barred by Res Judicata?

Back 28

Res judicata does not apply to the claim, however, the compulsory counterclaim rule requires that the defendant must bring all counterclaims that arise out of the same transaction or occurence as the oppsing party's claim. Rule 13(a).

Front 29

P sues D in state court on a claim for a state unfair competition statute because D plagarized in his book with P's published material. The state court dismisses the claim because he cannot establish the elements. P then sues D in federal court under a copyright law act. Does Res Judicata bar this claim?

Back 29

It depends. The court hearing the second suit will ask whether a second suit would have been barred in the original court system. The second court will give full faith and credit to the first court's judgment. The federal court would have to look at the state court's preclusion law. Most courts would hold that the second suit is not barred if the claim asserted in the action could not have been asserted in the first (federal question).

Front 30

P sues D in federal court under a copyright claim and loses. He then brings a claim in state court under an unfair competition statute. Is the second suit barred by res judicata?

Back 30

Depends. The general rule is that a plaintiff must attach to the federal claim any state court claims arising out of the same transaction to avoid excessive litigation. However, if a federal court denies attachment of such state claim, plaintiff is protected and can be heard in state court.

Front 31

P sues D for infliction of emotional distress. She loses because the court requries that the distress is accompanied by a physical injury. 16 months later, a court of appeals overrules a different case on similar facts, holding that physical injury is not required. P brings a new action to recover from the same incident. Res judicata?

Back 31

The subsequent change in the law will not allow P to start a new action. Each case must be decided under the law at the time it is considered. Finality of judgments would be meaningless since cases might be reopened at some indeterminate time in the future.

Front 32

P gets a divorce, custody of the kids and $400 a month in child support. 3 years later he wishes to move to reopen the judgment for an increase in weekly support due to high inflation. Does res judicata bar this motion?

Back 32

Where a judgment has prospective application and governs the parties future conduct, the court must retain authority to modify its orders in light of changed conditions.

Front 33

Plaintiff enters into a contract with D to purchase coal. P sues D in 2001 for supply grade AB coal instead of grade A. D alleges that the grade AB coal met the contract specifications. The jury awards P. Then, in 2002, P once again sues for a second delivery of grade AB coal under the same contract. How does res judicata apply?

Back 33

Because the second suit is based on a different transaction, claim preclusion does not apply. However, the defendant will be collaterally estoppped from asserting a defense that the coal met the contract specifications because a jury has already decided that issue in the first suit.

Front 34

Plaintiff enters into a contract with D to purchase coal. P sues D in 2001 for supply grade AB coal instead of grade A. D alleges that the grade AB coal met the contract specifications. The jury awards P. Then, in 2002, P once again sues for a second delivery of grade AB coal under the same contract. Can D assert a defense that the contract is void as to a mutual mistake as to the type of coal to be delivered?

Back 34

Although the separate defense of mutual mistake at the time of entering into the contract was available to D in the prior action, he failed to raise it. HOWEVER, collateral estoppel does not bar him from doing so later in the second suit for a new breach of the contract. Collateral estoppel only bars issues that were litigated and decided in the prior action. It does not effect claims or defenses that could have been raised but were not.

Front 35

Plaintiff enters into a contract with D to purchase coal. P sues D in 2001 for supply grade AB coal instead of grade A. D alleges that the grade AB coal met the contract specifications. The jury awards P. Then, in 2002, P once again sues for a second delivery of grade AB coal under the same contract. D defends on the ground that there was an oral modification to the contract to allow delivery of grade AB due to a national shortage of grade A. Will collateral estoppel bar D from relying on this defense?

Back 35

This is a new issue that has never been litigated or decided, and is available to D as a defense to the new action.

Front 36

Suppose P contracts with D to buy coal over several years. P sues D in 2001 for delivering grade AB coal instead of grade A. D defends on the ground that (1) the contract was invalid due to a mutual mistake and (2) the grade AB coal met the contract specifications. The jury returns a general verdict for D. In 2002, P sues again for a new breach of the same contract for the delivery of grade AB coal. D defends on the ground that it met the contract specifications. Does collateral Estoppel bar relitigation of this issue?

Back 36

The jury accepted at least one of the defendant's defenses in the first suit but it is impossible to determine which one when there is a general verdict. Therefore collateral estoppel will not bar relitigation of that issue.

Front 37

Suppose P sues D for a breach of contract and D brings up 2 defenses and P wins. Suppose P sues D for a second breach of the same contract and D wants to bring up a defense already litigated in the first suit. What procedural motion should P make to present his collateral estoppel objection?

Back 37

P should move for a partial summary judgment under Rule 56. His position is that D is barred from asserting this defense, because he litigated and lost on the defense in the earlier suit. If he can show that collateral estoppel applies, there is no genuine issue as to any material fact on that defense and he is entitled to judgment as a matter of law.

***summary judgment is appropriate where other documents must attach as evidence. This differs from a motion to dismiss because that is based soley on the complaint.

Front 38

P sues D, and the court finds there is personal jurisdiction. P subsequently gets a default judgment against D. P then seeks to enforce it, and D objects to the merits of the judgment. Is D barred from relitigating this issue?

Back 38

It depends on whether the state considers a default judgment as decided on the merits. New York recognizes such a principle. Under a full faith and credit doctrine, any other state in which the judgment is enforced must recognize New York's default judgment policy as on the merits.

Front 39

D lives in North Dakota, and sells brushes in Minnesota and South Dakota. He gets into an auto accident in Minnesota with P, who is a resident of Minnesota. Can P bring suit in South Dakota?

Back 39

According to internation shoe, the South Dakota court will not have personal jurisdiction over D for the auto accident. It is true that D has contacts with South Dakota because he sells brushes there, but a D cannot be sued simply because he has some contacts with the state. D may by committing limited acts within a state submit himself to jurisdiction for claims arising out of the acts themselves. Here, had the claim been for a faulty brush, P could sue in SD. If P is really determined to sue in SD she can bring suit there and have the process server wait until D is physically present in the state. Jurisdiction is permissible even if the defendant is only in the state briefly or for reasons unrelated to the litigation. (Burnham v. Superior Court)

Front 40

P, an ohio citizen, purchases a honda from Price Leblanc while on vacation in Louisiana. Shortly after he returns home, all 4 wheels fall off and he is injured. He brings suit in Ohio for negligence against Price Leblanc. Personal jurisdiction over dealer?

Back 40

Like Seaway in WW-VW, a court will likely dismiss this case for lack of personal jurisdiction. Price Leblanc has committed no delibertate act that affiliates it with Ohio. It does not sell cars there, and has not availed itself to the protection of Ohio laws, and has no reason to expect to be sued there. Although it is foreseeable that the car will be driven through or end up in Ohio, it is equally foreseeable that it will go to all states. Such a rule would subject the dealer to nationwide jurisdiction.

Front 41

DeSoto, a salesman at Price Leblanc, learns that a friend of a friend in Pennsylvania is interested in buying one of his cars. Desoto calls up the man from Penn and encourages him to come down and buy it. Dahlin! The man is convinced and buys the car and returns to pennsylvania where he realizes the car is missing several important parts. He sues in Penn. Personal jurisdiction?

Back 41

Here, DeSoto has consciously dealt with a Penn citizen and has voluntarily affiliated himself with the plaintiff's state. He can reasonably anticipate that P will use the car in Penn and that his deliberate relationship with him, which he initiated by calling out of state, may lead to a lawsuit there. His single contact would be sufficient to exert personal jurisdiction over claims arising out of this single sale.

Front 42

Desoto, a car dealer in LA, takes a trip to Georgia to relax. While drinking at a bar he strikes up a conversation with Lenoir, another car lover. When he leaves, shes asks for his card. She then decides to come down to LA to buy a car. Of course the car injures her and she tries to sue in GA. Personal jurisdiction?

Back 42

Although this contact did give rise to the injury, DeSoto did not purposely act intending to take advantage of the beneits and protections of GA law. He gave her the card at her request and did not encourage her to buy a car. This would be a casual or isolated contact and jurisdiction would go against Desoto's expectations of the consequences of his encounter.

Front 43

A japanese manufacturer of bikes sells bikes to a wholesaler in CA who sells to a store in NV. A NV plaintiff buys a bike in NV and is injured. It sues the Japan corp in NV. Personal Jurisdition?

Back 43

WW-VW would suggest that Japan has purposely taken advantage of the benefits and protections of the laws of NV by importing cars the that state and deriving a profit from those sales. It cannot insulate itself from the jurisdictional consequences of that activity by using wholesalers to channel goods into that state.

Asahi requires an active effort to serve the forum state makert to support stream of commerce jurisdiction. The opinion suggests that jurisdiction should be proper in this case assuming that a reasonable quantity of D's products are resold in NV. D derives benefits from that state whether it knows it or not.

Front 44

D, a michigan resident, publishes an ad to sell his car in a nationally publicized magazine. P, an indiana resident, calls him up, visits the car, and decides to buy it. He then sues in Indiana for fraud. Personal jurisdiction?

Back 44

Although D advertised in a magazine with the purpose of selling his car, the magazine was publicized nationally. Although he made a contact with an Indiana resident, he may not even know where P is from and did not purposely avail himself to indiana. Asahi held that once a jurisdictionally significant contact is found, the court must consider whether it would be fair and reasonable under all circumstances to take jurisdiction. P called D, the negotiations took place in michigan, the sale took place in michigan. D never called P or left michigan. It seems unfair to make D litigate the claim in Indiana.

Front 45

If D advertises to sell his car online, can P sue D for fraud in his own state?

Back 45

Most websites constitute a passive advertisement because D did not reached into P's state specifically.

However, the more D engages actively in state commerce in that state, the more likely jurisdiction is found. For example, if substantial negotiations or selling of products takes place in the forum state, purposeful availment is liekly to be found.

Front 46

D manufactures stunt cars for movies in Michigan. P, a hollywood producer, buys a car from D for a movie being filmed in Colorado. P sues D in colorado when the star of the movie is injured from the stunt car. Colorado's long arm statute provides that jurisdiction is allowed for claims arising out of the tortious act committed in this state. Would the long arm statute apply?

Back 46

This depends on whether the court is willing to stretch the plain language of the statute. Obviously the defendant's negligent conduct occured in Michigan, and not Colorado, therefore, many courts will not allow such jurisdiction. However, some courts may interpret the language to mean that there is jurisdiction if the plaintiff's injury occurs in the state.

Front 47

D manufactures stunt cars for movies in Michigan. P, a hollywood producer, buys a car from D for a movie being filmed in Colorado. P sues D in colorado when the star of the movie is injured from the stunt car. Would jurisdiction be constitutional?

Back 47

The only contact that D has with colorado is that the P took the car it bought in CA and brought it to CO. Like VW, the car reached CO by the unilateral act of a third party, not as the result of any deliberate contact with the state by D. Although it may be foreseeable that P will make a movie in CO using the car, this foreseeability is not a sufficient basis for exercising jurisdiction over D there. Therefore, even if the long-arm statute authorized the jurisdiction, it would exceed the bounds of due process.

Front 48

A and B hire C and D to paint at their studio. The studio burns down. A wants to sue C and D for breach of contract for burning down her studio in the process of painting it. B wants to join as a plaintif to sue C and D for negligence to recover for burns. Can they do this?

Back 48

Although both plaintifs are bringing separate legal theories they satisfy rule 20(a) because the claims (1) arise out of the same occurence or transactions and (2) are based on the same question of fact - did C and D burn down the buiding?

Front 49

A's studio burns down and she knows that either B or C caused the fire but isn't sure which one did. Can she sue them both as co-defendants?

Back 49

Although only one will be liable, Rule 20(a) allows her to sue them both as codefendants. Her claims both arise from the fire and both involve the common question of who caused it. Rule 20(a) expressly allows joinder even though relief is sought against defendants in the alternative

Front 50

A is the owner of a studio, and C and D are painters hired to paint the studio. E is the assistant working for C and D. The studio burns down. If A sues C for breach of contract, can C assert claims against D and E in the same suit for negligently causing his injuries under rule 20(a)?

Back 50

Rule 20(a) only applies to joinder of parties by the original plaintiffs. A did not sue D and E in the original suit. Rule 14(a) requirements for impleading D and E would not be met on these facts.

Front 51

A and B own a studio. C and D are hired to paint the studio. A sues B and C for negligence and breach of contract as a result of a studio fire. Can B assert a claim against A for payments due for part of the painting that had been completed before the building burned?

Back 51

Not only is it allowed under 13(a), but it is required because this second claim arises out of the performance of the same paint job that gave rise to A's claims. It is therefore a compulsory counterclaim.

Front 52

A sues B for negligence in her studio fire. B asserts a counterclaim for injuries suffered in a car accident two months after the fire but before the suit commenced. Can B do this?

Back 52

Rule 13 provides for the assertion of both compulsory counterclaims and permissive counterclaims. Assuming that the permissive counterclaim could be brought in this jurisdiction by itself, the court will allow it.

Front 53

A sues C for negligence in burning down her studio. May C assert a claim against A for breach of contract and also bring B as a co-defendant on that claim?

Back 53

Yes. Rule 13(h) allows C to bring in additional parties on the counterclaim as long as the claim against the added party and the original plaintiff meets the requirements of rule 20(a)

Front 54

A sues E for his negligence in causing a fire and C and D (E's employers) under the doctrine of respondeat superior. Can C sue P for indemnification of damages because P was the negligent party?

Back 54

Yes. This would be a cross-claim allowed under 13(g).

Front 55

If A sues C and D for their negligence in starting a fire while painting his studio, can C sue D for his failure to pay him half of the money from the paint job?

Back 55

No. A cross-claim is only proper where it arises out of the same transaction or occurence as the main claim. Rule 13(g).

Front 56

If A sues C and D for their negligence in starting a fire while painting his studio, can C sue D for his negligence in starting the fire AND his failure to pay him half of the money from the paint job?

Back 56

Yes. C's claim for his own injuries is proper under rule 13(g) as a cross-claim and then he is allowed to add any unrelated claims under rule 18(a).

Front 57

Grant who lives in the North District of Ohio sues Lee who lives in the East District of Virginia for breach of contract to design a building. Grant claims that after extensive negotiations in Northern district of ohio, lee agreed to design a building to be built in the Middle district of TN. Lee breaches. Which venue is proper?

Back 57

Because this is a diversity case, section 1391 (a) prescribes the proper venue. The Eastern District of VA is proper because a defendant resides there and all defendants are from the same state. Venue is proper here under 1391(a)(2) as well because Lee's ommission to design the building took place there.

The only potential basis for venue in the middle dist of TN is that the building was to be constructed there. Lee might be subect to venue in that jurisdiction if he was to render services at the site during construction since he ommitted to render services there. (see 1391(a)(2)) However, if he was to soley provide services in VA, this provision would not support venue.

The North dist of OH may be a proper venue under 1391a2 on the ground that a substantial part of the events or ommissions giving rise to the claim occurred there. Did the negotiation tht took place in this district give rise to the claim? arguably the claim arose from the failure to follow through on the agreement rather than the contract formatin. However, given the purpose of venue provisions, the court may take a more flexible view and conclude that venue is proper where negotiatioons occured.

Front 58

Grant who lives in North Dist OH sues Lee who lives in East Dist VA and Stuart who lives in West Dist VA. for breach of contract of a construction site in TN. Which venue is proper?

Back 58

Either district in VA is proper under 1391(a)(1) since all defendants reside in the same state and one resides in each district.

Front 59

Grant from North Dist OH, sues Lee from East Dist VA and Larry from South Dist of NC, for breach of contract for construction in TN. which venue is proper?

Back 59

Because the defendants do not reside in the same state, 1391(a)(1) does not apply.

Eastern Dist of VA is only proper under 1391(a)(2) if Lee caused the substantial part of the events giving rise to the breach and assuming theres personal jurisdiction over Larry.

Western District of VA is not proper under any of the provisions.

Middle District of TN is only proper where the court finds the breach arose there and TN has personal jurisdiction over defendants.

Northern Dist of OH is probably the proper venue under 1391(a)(2) because extensive negotiations took place there, assuming personal jurisdiction is satisfied.

Front 60

Grant from North Dist OH, sues Lee from East Dist VA and Larry from South Dist of NC, for breach of contract for construction in TN. If grant raises a Federal Question claim, how does that effect which venue is proper?

Back 60

The case is not founded soley on diversity of citizenship.Therefore 1391(b) applies rather than 1391(a). But under these facts, it would not provide additional venue options.

Front 61

Assume that venue is improper but the defendant does not raise an objection. May the judge dismiss the case sua sponte? (without a request to do so by the parties?)

Back 61

Venue is a priviledge of the defendant which she may waive. However, the purpose of venue statutes is not only to prevent inconvenience to defendants, but to allocate judicial business to courts with some connection with the case. Public interest may suggest that a particular venue is inappropriate even if the parties are willing to litigate there.

Front 62

A CA resident wants to sue a OH resident and a CO resident in OH for a claim arising out of an accident in Canada. Is venue proper?

Back 62

because 1391(a)(1) and (2) don't apply, the fallback provision 1391(a)(3) will. That is assuming that personal jurisdiction is satisfied.

Front 63

A sues B for faulty engineering calculations. B wants to implead C because he was also negligent. May he do so?

Back 63

Yes, under rule 14 this is a proper impleader because C is a new party who may be liable to the third party plaintiff (B) for all or part of the plaintiff's (A) claim against B

Front 64

A sues B for his faulty engineering calculations and B impleads C alleging that it was actually C who did the calculations. Is this impleader proper?

Back 64

No. Rule 14 cannot be used to foist alternative defendants on the plaintiff. A chose to sue B and not C. If liability is an either/or proposition, B has no claim against C.

Front 65

Suppose A sues B, a general contractor for faulty construction. B suspects that the faulty work is due to one of his subcontractors, C or D. Can he implead them both?

Back 65

Yes. As long as rule 14 is satisfied a defendant may implead multiple third party defendants claiming either joint or alternate liability.

Front 66

A sues B, a general contractor, for faulty construction. B wants to implead C, a subcontractor who was responsible for the faultyness, and also assert a claim of theft because he took his camels from the construction site. Can he do so?

Back 66

Yes. 14(a) allows the impleader because it arises from the main claim, and 18(a) allows the additional unrelated claim once 14a is satisfied.

Front 67

A sues B for faulty construction and B sues his subcontractor C for indemnification. C moves to dismiss on the grounds that he only has to pay B if B is found liable, which has not happened yet. What should the court do?

Back 67

Dismiss. The point of Rule 14 is to allow the main claim to be determined jointly with other claims that may be triggered by it. Thus, although C is not yet liable to B, he may be if A wins, and B wins, and B pays the judgment.

Front 68

A sues B or faulty construction. B does not implead C. Can B subsequently file suit for indemnification against C?

Back 68

Yes. The defendant is not required to implead.

Front 69

A sues B for breach of construction contract. B impleads C for faulty subcontract work and C wants to assert a claim against A for intentional interference with his subcontract with B. May he do so?

Back 69

The 6th sentence of rule 14(a) explicitly authorizes C to do so. The suit ow looks like a triangle.

However, C cannot assert any claim against A. They are limited to those arising out of the same transaction as the main claim.

Front 70

A sues B. B impleads C. Can C now implead D?

Back 70

the 9th sentence of rule 14(a) allows such telescoping claims against further parties.

Front 71

A sues B. B impleads C. Can A now assert an unrelated claim to C?

Back 71

The 7th sentence of Rule 14 authorizes joinder of claims the plaintif has against the third party defendant if those claims satisfy the same transaction or occurence test. This limits the introduction of unrelated matters into the action.

Front 72

A sues B. B impleads C. All 3 are from different states. Is there a problem?

Back 72

The 3rd party's citizenship is irrelevant to determining diversity and venue, but there must be personal jurisdiction.

Front 73

Suppose A sues B and B counterclaims. Can A implead C assuming that C is liable to A for the counterclaim?

Back 73

Yes, rule 14(b) authorizes this.

Front 74

A sues B for an excessively forceful arrest. He brings suit in federal court for a federal question, and also a state claim of battery. He then seeks to add a third unrelated claim. Can he do so?

Back 74

No. Supplemental jurisdiction only covers claims arising out of the same transaction.