mbe civ pro

An individual who is a U.S. citizen and permanently moved to a foreign country returned to the United States for an extended visit with relatives who lived in State A.  While in State A, the individual suffered serious injuries when an amusement park ride malfunctioned.

The individual filed a negligence action in federal district court seeking $95,000 against the corporation that owned the amusement park in which the ride was located.  The corporation is incorporated in State B and has its principal headquarters in State A.  The corporation has filed a motion to dismiss for lack of subject-matter jurisdiction.

Should the court grant the motion to dismiss?

• 1. No, because both the individual and the corporation are U.S. citizens who are not citizens of the same state.

• 1. No, because the corporation is only a citizen of the state in which is incorporated.

• Yes, because the corporation is a citizen of the same state where the cause of action arose.

• Yes, because the individual's domicile is in a foreign country.

An author filed a complaint in federal district court alleging copyright infringement by a corporate publisher.  The corporation is incorporated and has its headquarters in the state in which the federal district court is located.

Sixty-five days after filing the complaint, the author personally served the complaint and summons on the 20-year-old secretary for the president of the corporation while she was at her desk in the company headquarters.  State law permits process to be served on a corporation by leaving the summons and complaint at the defendant's principal place of business with a person of suitable age and discretion who is employed there.

Which of the following would likely serve as the best ground for the corporation to challenge the service of process as improper?

• The service of process was untimely.

• The author served the process.

• 1. State rules for service of process do not apply when the cause of action is not based on diversity jurisdiction.

• 1. Process was not delivered to the corporation's authorized agent.

A trademark holder that markets clothing has filed a complaint in the federal district court for State A.  The complaint names two defendants, an individual who operates a sole proprietorship and a corporation.  The complaint alleges that each violated a federal law by infringing upon the holder's trademark.  In particular, the holder seeks $80,000 in damages from the individual for selling the holder's clothing without the trademark and $50,000 in damages from the corporation due to its use of a name and symbol that is confusingly similar to the federal trademark on the clothing the holder sells.  In addition, the holder seeks injunctions prohibiting each defendant from engaging in the alleged infringement.

The holder is a citizen of State B, the individual is a citizen of State A, and the corporation is incorporated in State A but its principal headquarters are located in State B.  The corporation seeks to file, as part of its answer, a motion to sever the claim against it due to improper joinder.

Of the following, which is the best ground upon which the corporation can base this motion?

• The corporation's principal headquarters are located in State B.

• 1. The motion is being filed as part of its answer.

• 1. The trademark holder has not suffered more than $75,000 in damages.

• The trademark holder's claims do not arise out of the same series of transactions or occurrences.

A plaintiff filed a complaint alleging malpractice in federal court.  The plaintiff properly served the defendant with the complaint and summons.  The defendant then timely served her answer, a set of 24 interrogatories, and a request for an initial planning conference on the plaintiff.

The interrogatories provided that the plaintiff must respond to the interrogatories within 30 days of service.  The interrogatories sought disclosure of facts relating to the plaintiff's claim.  In addition, the interrogatories asked the plaintiff to state the facts supporting his allegation that the defendant breached the applicable standard of care.  The plaintiff has moved for a protective order from the court regarding the interrogatories.

Which of the following provides the strongest support for the plaintiff's motion?

• The interrogatories ask about the plaintiff's factual and legal contentions.

• 1. The interrogatories exceed the number permissible without court permission or the plaintiff's consent.

• 1. The rules permit the plaintiff to take longer than 30 days to respond to the interrogatories.

• The service of the interrogatories was premature.

The owner of a car was severely injured and her car was destroyed when she became distracted by a display on an electronic billboard and lost control of her car.  The car owner brought a negligence action based on diversity jurisdiction in federal district court against the owner of the billboard, the advertising firm that created the display, and the manufacturing company that sold the product displayed.  The manufacturing company filed a crossclaim against the advertising firm based on an indemnification clause in their contract.

Instead of filing an answer to the crossclaim, the advertising firm served a motion to dismiss the crossclaim for failure to state a claim upon which relief can be granted.  An affidavit regarding the oral waiver of the indemnification clause was attached to the motion.

Before the court takes any action with regard to the advertising firm's motion, can the manufacturing company voluntarily withdraw the crossclaim without the approval of the court or the consent of the parties?

• No, because the advertising firm served a responsive pleading.

• 1. No, because the advertising firm's motion to dismiss was converted into a motion for summary judgment.

• 1. Yes, because a crossclaim is never compulsory.

• Yes, because the advertising firm has not served an answer to the crossclaim.

A state governmental water and sewer authority was sued in federal district court on the basis of diversity jurisdiction by a private contractor for an alleged breach of contract and the resulting damages.  The authority, in answering the complaint, contended that it was immune from the suit under the Eleventh Amendment of the U.S. Constitution and moved for summary judgment.  The district court denied the motion.  The authority filed an appeal of the district court's order denying its motion.  The contractor has challenged the authority's right to appeal the district court's order.

Should the appellate court permit this appeal?

• 1. No, because of the final-judgment rule.

• 1. No, because the district court order denied the authority's motion.

• Yes, because a constitutional issue is at stake.

• Yes, under the collateral-order doctrine.