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LSTD 207 Final Exam
Part 1 of 1 – 100.0 Points Question 1 of 30 2.5 Points
A defendant should always raise any objections to personal jurisdiction in the first response to the plaintiff’s complaint or the issue is waived and may not be reconsidered.

True
False

Feedback: See pages 118, 120-121. A defendant must raise objections to venue, personal jurisdiction, and form and method of service of process in their first response to the complaint (pre-answer or answer) or the issue is waived and may not be reconsidered at a later time.

Question 2 of 30 2.5 Points
A defendant can remove a case from state court to federal court even if the federal court could not have heard the case initially.

True
False

Feedback: See page 27- “FAQ”. Removal jurisdiction is available to defendants only in cases that the plaintiff could have commenced in federal court.

Question 3 of 30 2.5 Points
Is it possible for a defendant to file a motion to dismiss for personal jurisdiction and a motion for summary judgment simultaneously?

A.Yes B.No

Feedback: A motion to dismiss is asserted prior to the answer (as an alternative to an answer) or in the answer to the complaint. A motion for summary judgment is made after the filing of the complaint and answer.

Question 4 of 30 2.5 Points
John Doe (Arizona) sues Jane Smith (California) and Joe Johnson (California) in federal district court in California.

A.The court does not have jurisdiction as the defendants are both from California and not diverse. B.The court does not have jurisdiction because it was filed in California. C.The court has jurisdiction as long as the plaintiff is diverse from the defendants. D.Both A and B are correct.

Feedback: See page 14. The Strawbridge rule requires only that the plaintiff and defendant be diverse- thus parties on the same side may be co-citizens.

Question 5 of 30 2.5 Points
Which of the following cases CAN NOT be heard in federal court?

A.A claim based on the Age Discrimination under the Federal Employment Act. B.A tort claim between citizens of the same state. C.A case brought by the State of New Jersey against the State of New York. D.A case between a citizen from Maine and a citizen from Rhode Island, where the claim is more than $75,000.

Feedback: Questions of federal law and diversity between different states and citizens of different states are within the jurisdiction of Federal courts. State tort cases between citizens of the SAME state are restricted to state court.

Question 6 of 30 2.5 Points
Johnson (D. Mass) wants to sue Alcott (D.N.H.) and Montgomery (D. Me.) for trasspassing on Johnson’s property in Massachusetts. Where would Venue be proper?

A.D.N.H. B.D. Me. C.D.N.H. or D. Me. D.D. Mass

Feedback: This case would be governed by §1391(a) as it is a diversity case. The defendants do not live in the same state, making section 1 unavailable. That leaves section 2, a district in which a substantial part of the acts or omissions occurred. Here the tresspass alleged occurred in D. Mass. making it a district where venue is proper. Because Section 2 produced a district in which venue is proper, section 3 is not applicable. Because the defendants do not reside in the same state, none of their districts can form the basis of proper Venue. See pages 66-68

Question 7 of 30 2.5 Points
Ted sues Larry for negligence, alleging that he suffered emotional distress from witnessing injury to a close friend in an accident with Larry. Larry responds by moving to dismiss for failure to state a claim under Rule 12(b)(6). After the court denies the motion, but before Larry answers, Larry files a second pre-answer motion to dismiss per lack of venue under Rule 12(b)(3). Which of the following is True?

A.The motion is improper because Larry cannot make a second pre-answer motion under Rule 12 to assert a defense that was available when the first motion was made. B.The motion is improper, because Larry’s failure to assert his Rule 12(b)(3) motion in his first pre-answer motion waives the objection of failure to state a claim. C.The motion is proper because the objection is not waived by making a motion on other grounds, and may be raised at any time. D.The motion is proper because the motion to dismiss for lack of venue under Rule 12(b)(3) is not considered one of the four “disfavored defenses.”

Feedback: The correct answer is A. A defendant has two options when making certain motions to dismiss. First, he can file the motion prior to his answer to the complaint (pre-answer). If he chooses this method, four of the 12(b) motions must be filed at that time. If he chooses not to pre-answer, he must then file at least the four “disfavored” 12(b) motions in his answer. Either way he chooses to file, those four 12(b) motions must be raised in the initial response. A defendant cannot file 2 pre-answer motions for any of the 12(b) defenses, which is why A is the correct answer. See Rule 12(g).
12(b)(6) motions should also be raised in the initial response generally, but unlike the four 12(b)s that MUST be filed initially, the 12(b)(6) motion is not waived if he fails to file it in the first response. Rule 12(g)(1) only prevents Larry from making this motion in the form of a second pre-answer motion. Larry can file the 12(b)(6) motion in his answer or by another motion after pleading or at the trial on the merits. “If a defendant files a pre-answer motion such as a motion to dismiss, the motion must include these defenses to avoid waiver.” page 120

Question 8 of 30 2.5 Points

You get the oil in your AMC Pacer changed at Skippy Lube in Jefferson City, Missouri, before heading down to Austin, Texas, to visit a friend. In Arkansas your car starts to make a strange noise. When you pull over you notice that there is no oil in the engine and it appears that the cap was never put back on. You immediately call your lawyer, who finds that Arkansas has a long-arm statute providing that a court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person’s transacting any business in this state. Can you sue Skippy Lube in Arkansas? No

Feedback: See pages 42-44. Personal jurisdiction is based on either domicle, consent, physical presence/personal service, or minimum contacts. Here it would be based on the minimum contacts tests. Long arm statutes require specific types of contact with the forum state in order to obtain personal jurisdiction. Here, there was NO contact made by Skippy Lube in Arkansas. The work was done in Missouri and Skippy Lube is located in Missouri.

Question 9 of 30 2.5 Points

Same facts as the road trip scenario above, but you have the oil changed in Arkansas on your way to Texas. Should you sue in Arkansas or Missouri?

Feedback: Arkansas is when the action occurred. While Missouri may have personal jurisdiction over Skippy Lube, Arkansas has both personal and subject matter jurisdiction. The first two rings of jurisdiction.

Question 10 of 30 2.5 Points
John Doe (resident of So. District of California) sues Joe Smith (resident of No. District of California) for Federal employment discrimination in the So. District of California. Smith does not object to venue and answers the complaint. Prior to the hearing on the merits, Smith files a motion to change venue to No. District of California where he resides.

A.Smiths motion is proper since he resides in the No. District of California. B.Smiths motion is proper because he filed prior to the hearing on the merits. C.Smiths motion is improper because he waived his objection to the venue and answered the complaint. D.Smiths motion is improper because Doe may file in any district court in California- Smith’s state of residence.

Feedback: A defendant waives objection to venue by failing to raise it when he responds to the complaint. A. could have been the right answer if Smith had properly and timely objected to venue. B. is incorrect as the motion must be filed in his answer to the complaint- not during the case. D. is incorrect- venue is based on the judicial district where the defendant resides- not anywhere within the state of California.

Question 11 of 30 2.5 Points
Can attorneys depose persons who are not parties to the suit?

A.Yes B.No

Feedback: See page 139. A deposition is the proper discovery tool used to discover information from non-parties to the lawsuit. Interrogatories are used for parties to the lawsuit.

Question 12 of 30 2.5 Points
John Doe sues Joe Smith for injuries suffered in an accident. During the deposition of Smith, Doe’s attorney asks him, “didn’t you tell your lawyer that you were speeding?” Smith’s attorney objects to the question, arguing this information is not discoverable under the attorney-client privilege to the discovery rules. Is this objection proper?

A.Yes B.No

Feedback: See page 148. The attorney-client privilege to bars inquiry into communications between a client and his counsel in the course of legal representation and will not be discoverable.

Question 13 of 30 2.5 Points
Once a defendant has met its initial burden of moving for summary judgment, the plaintiff must:

A.Point to evidence already in the record showing the existence of a genuine issue of material fact at issue. B.Point to the parts of the plaintiff’s pleadings that allege matters in issue to demontrate a genuine issue of material fact. C.Point to or submit as part of the response to the motion, evidence which may be admissible, that demonstrates that there is a genuine issue of material fact at issue.

Feedback: See pages198-201

Question 14 of 30 2.5 Points
When is material protected from discovery by work product protection?

A.When it is confidential material prepared by a party’s representative. B.When it is prepared in anticipation of litigation or for trial by a party or by or for that party’s representative. C.When it is confidential communication between a party and that party’s attorney. D.When it is prepared in anticipation of litigation or for trial by any person.

Comment: The work product protection only protects work by the party or the party’s representative.

Question 15 of 30 2.5 Points
When may a defendant move for judgment as a matter of law?

A.At the conclusion of the defendants evidence. B.At the conclusion of the plaintiffs evidence. C.Both A and B. D.Before the presentation of any evidence.

Feedback: See page 222

Question 16 of 30 2.5 Points
The general rule in Federal civil court is that a jury’s decision must be unanimous.

True
False

Feedback: True. See page 213. Unanimous unless agreed to otherwise.

Question 17 of 30 2.5 Points
Res Judicata only bars relitigation of legal issues that were decided in the original action.

True
False

Feedback: “Issue” preclusion is called collateral estopel. Res Judicata is “claim” preclusion.

Question 18 of 30 2.5 Points
What is standard the judge is to apply in granting a new trial based on an incorrect jury verdict?

A.”against the great weight of evidence.” B.”no rational basis in law.” C.there is “no disputed issues of material fact.” D.no “genuine issue of material fact.”

Feedback: See page 224

Question 19 of 30 2.5 Points
In Federal civil court, a right to a jury trial is waived unless specifically requested by a party.

True
False

Answer Key: True

Feedback: True. See Rule 38, page 215-216

Question 20 of 30 2.5 Points

For civil cases, the burden of proof a Plantiff must establish for each element of a claim is perponderance of the evidence

Feedback: See page 218

Comment: “preponderance”

Question 21 of 30 2.5 Points
When a Federal Circuit Court of Appeals decides to reconsider an appeal to include a decision by all members of the court, the rehearing is considered:

A.ad hoc B.en banc C.A mandamus D.pro se

Feedback: See page 231

Question 22 of 30 2.5 Points
A federal court judge finds in favor of Plaintiff X for violation of his Federal Civil Rights by Defendant X. However, during the bench trial, the judge denied Plaintiff’s request to compel discovery of certain evidence. Although Plaintiff X ultimately won the case, he feels the judge was wrong in denying his motion to compel and seeks to appeal the denial of the evidence. Which of the following is True?
I. The prevailing party can always appeal any legal issues rendered by a judge.
II. The Plaintiff won his case and cannot appeal this issue.
III. The Plaintiff must raise his objection at trial in order to preserve this issue for an appeal.

A.III only B.II only C.I and III only D.I only

Feedback: See page 233-234. Plaintiff X may not have liked the judge’s ruling, but he won his case. This is the requirement of adversity. While III is technically correct, it only applies when the party objecting loses the case and files an appeal. In this case, the Plaintiff won despite the judges ruling to deny the evidence.

Question 23 of 30 2.5 Points
Tom sues John in state court for breach of contract. During the trial, the judge excluded a witness affidavit submitted by John’s attorney. John’s attorney does not object to the judge’s exclusion of the evidence. The jury finds for Tom. John files an appeal in the state appellate court, claiming the judge erred in excluding the affidavit. The court should:

A.consider the appeal even if the evidence was not objected to during the trial B.not consider the appeal since John’s attorney failed to object to the exclusion during the trial C.remand the case back to the trial judge for him/her to reconsider the evidence

Comment: Because the issue was not objected to at the trial court level, it cannot be appealed.

Question 24 of 30 2.5 Points
Following a federal court jury verdict and award for damages, the judge:

A.may determine the amount awarded by the jury is too high and threaten a new trial unless the prevailing party accepts less. B.may determine the amount awarded by the jury is to low and can set an amount he/she deems is more equitable. C.must accept the jury’s award for damages as a matter of law. D.may reconvene the jury and ask them to reconsider the amount awarded.

Comment: A federal court judge may conclude that the award was too high and threaten a new trial if the party does not accept less.

Question 25 of 30 2.5 Points
Andy sues Ray Motors for injuries suffered while driving a used snowmobile that Ray Motors sold him. His suit is based on breach of warranty (a contract theory) and strict products liability (a tort theory). Ray Motors moves to dismiss the contracts claim on the ground that the state long-arm statute does not authorize jurisdiction over it. The judge concludes that the long-arm statute allows the suit against Ray Motors for the tort claim but not the contract claim and thus dismisses the breach of warranty claim. The case goes to trial on the strict liability claim. After Andy presents his evidence, the trial judge grants a directed verdict for Ray Motors on the ground that Andy has not presented sufficient evidence that the snowmobile was defective. Judgment for Ray Motors is entered. Later, Andy sues Ray Motors again, for the same injuries. This time, he bases his claim in this action solely on a negligence theory. Andy’s second action:

A.will not be barred because the contract claim was dismissed for lack of jurisdiction so there has been no final decision “on the merits.” B.will be barred because the negligence claim could have been brought in the first action but was omitted. C.will not be barred because the grant of the directed verdict motion did not decide the case on the merits in the first action. D.will not be barred since his claim in the second action is not the same claim as his claim in the first.

Feedback: Res Judicata requires all legal theories of relief to be asserted in one lawsuit. Andy was required to raise the negligence theory in the first case along with his other legal claims for relief. See page 252- Same Claim.

Question 26 of 30 2.5 Points
John Doe files a complaint against Joe Smith for breach of contract in California. Smith files a motion to dismiss for lack of personal jurisdiction, since Smith lives in Arizona and the contract was entered and performed in Arizona. The judge grants Smith’s motion to dismiss. Doe then files a second lawsuit in Arizona against Smith for the same breach of contract claim. The doctrine of res judicata does not bar Doe from filing the second lawsuit.

True
False

Feedback: True. Certain dismissals, like for lack of subject matter jurisdiction, do not bar a second action since the judgement was not based on the merits of the claim. Remember, one of the requirements for res judicata to apply is that the judgement that was entered was “on the merits” and that the parties had a full and fair opportunity to litigate the claim. see pages 258-259.

Question 27 of 30 2.5 Points
John Doe sues Joe Smith for trespassing on his property on Feb. 26, 2008. Smith argues he had an easement allowing him on Doe’s property. The court finds in favor of Smith. Doe then sues Jane Johnson for also trespassing on his property on a separate occasion but also on Feb. 26, 2008. Does Res Judicata bar Doe from suing Jane Johnson in a second action?

A.Yes B.No

Feedback: The parties are not the same in the second action. Res Judicata only applies when the parties in the second lawsuit are the same as those in the first lawsuit. See page 253. Same parties

Question 28 of 30 10.0 Points
Cathy Copy, author of a book called Carry Motter and the Apprentice’s Gem, is sued in Federal District Court by HP publishers for copyright infringement and breach of contract for copying the works of another author. The Court dismisses the copyright infringement claim under Fed. R. Civ. P. 12(b)(6) but allows the breach of contract claim to proceed to trial. The jury finds for the defendant and the court enters judgment. HP publishers files suit against Cathy Copy in a different federal jurisdiction raising the copyright infringement claim again. What are the implications of a second law suit for the copyright infringement claim from a res judicata perspective? Does it matter that the Court in the first suit has entered a final judgment? Refer to the Second Restatement of Judgments (as cited in your text) for the government rules.

The Collateral Estoppel doctrine is barring issues that have been litigated before.
Res Judicata is the barring of claims that have either been litigated or could have been litigated.
In the case of Cathy Copy HP publishers filed a suit against Cathy Copy in a different a federal jurisdiction raising copy infringement claims again. In the previous trial, the court dismissed the copy infringement claims, and allow the breach of contract claims to proceed to trial.
The implication of the use of res judicial for the copywriter claim would be allowed, due to the fact that the judgment was been made final.
It does not matter if the courts made a final judgment because Rule 59 can be used, if allowed. Rule 59 is for a New Trial; Altering or Amending a Judgment.
Comment: I would disagree with your analysis. Under these facts, the copyright claim was dismissed for failure to state a claim, not on the merits of the case. Therefore, it would not be barred by res judicata.

Question 29 of 30 10.0 Points
Assuming the fact pattern above, Cathy Copy has written a new book, Carry Motter and the Closet of Lies. Cathy Copy is sued again in Federal District Court by HP publishers for copyright infringement and breach of contract. How might this law suit be affected by the collateral estoppel doctrine? Explain what the collateral estoppel doctrine is.

Collateral Estoppel can be pleaded by the defendant in civil cases. Collateral Estoppel does not allow the reiteration of a claim, demand or cause of an action or opposition to an issue. It is to prevent duplicated fruitless claims when re-litigation is probably not going to change the outcome of the case.
Collateral estoppel would only be allowed if the rules applied to the case and if the new case was inclusive of the same claims and issues. The fact pattern describes a new book and does not go into detail about the specifics of the law suit from HP publishers. The Issues must be identical in order for collateral estoppel to be used. So in order for collateral estoppel to apply the following requirements would have to be met to apply for issue preclusion, of collateral estoppel
1. Identical issue.
2. Actually litigated and determined.
3. Essential to the judgment.
4. Same parties and the mutuality doctrine.
Question 30 of 30 12.5 Points
Discuss in detail how you think jurisdictional issues might arise in a law office that handles general civil matters. Touch on all three of the “hoops” of jurisdiction discussed in our textbook.

Jurisdiction can affect the issues of a civil matters in a law office because in order to have proper jurisdiction three things must be present.