Federal RulesFRCP 11: - TJSL Homepage | Thomas Web viewThis case arises under the Diversity and...

1CIVIL PROCEDURE ONE PROF. SLOMANSONFINAL EXAMINATION: FALL 2011 EXAM # _______

TABLE OF CONTENTS PageContents ................................................................................................................ 1Instructional Memo ….…....................................................................................... 2

FILEComplaint .................................................................................................................... 3Questions 1-7 ………………………………………………………………………... 3Answer ……….………………………………….…………………………………… 4Counterclaim ………………………………………………………………………… 4Attachment Request …………………………………………………………………. 4Questions 8-10 ………………………………………………………………………. 4

LIBRARYCase ………………………………….…………….................................................... 5Federal Rules ……………………………………………………………………….. 5Statute ………………………………………………………………………………. 5

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Memorandum

Fm: Managing Partner To: Associate ApplicantRe: Posh v. DeftcoDate: December 5, 2011

We are among the growing number of law firms using this type of exercise to screen applicants during our interviewing process. We do not expect you to use any particular format for your response. Please feel free to employ the “IRAC” format you likely used in law school. We do not want you to represent a particular side in this litigation. We do want you to provide the respective arguments for the issues that can be argued by the parties, and reason to a conclusion for each issue.

This exercise consists of 5 pages. Your task is to respond to the 10 questions presented in the FILE below. Do not discuss waiver in this exercise.

Be sure to read the documents and legal resources in the attached FILE—and LIBRARY. Not every scrap of information will necessarily be relevant to this exercise. The LIBRARY does not contain all relevant legal resources.

Good luck, MPManaging Partner

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FILE

Patrick Posh, an individual ) v. )Deftco, Inc., a corporation )

UNITED STATES DISTRICT COURTEastern District PennsylvaniaFile Number 654321-S.O.B.

COMPLAINT Filing Date: November 1, 2011

1. This case arises under the Diversity and Nasty Boss Act jurisdiction of the federal courts. Both statutes are incorporated by reference at this point, as if fully set forth herein. 2. Plaintiff Mr. Patrick Posh (hereinafter Posh) is domiciled in Westchester, Pennsylvania. Ms. Darla Demno (hereinafter Demno) is an individual who is domiciled in Westchester, Pennsylvania. Deftco is a Delaware corporation. Its sales are equally divided between Pennsylvania and Delaware. Deftco’s only office outside of Delaware is in Westchester, Pennsylvania. 3. Demno is an office manager for Deftco. Mr. Posh was employed by Ms. Demno as her assistant regarding their work for Deftco. Demno made unwanted advances, which Posh declined. Demno fired Posh. Demno should be spelled “Demon.” 4. Wherefore, plaintiff Posh seeks compensatory damages in the total amount of $1,000,000, plus any further damages proven at the trial of this action. Signed: Jumpin’ Jack Flash Dewey, Cheatem, Bilkem & Howe Attorneys for Plaintiff Pat Posh

Questions:

1. Does the court have subject matter jurisdiction over Posh’s lawsuit? (Assume that Posh properly incorporated both relevant statutes, mentioned in ¶1, into his complaint. Do not discuss the amount in controversy for this issue.)

2. Does the court have personal jurisdiction, and is it the proper venue, for the claims against Deftco? (Do not discuss long-arm statutes or procedural Due Process.)

3. Can Deftco successfully seek a transfer of this case to Delaware’s federal district court?

4. Can Deftco successfully attack Posh’s complaint for failure to state a claim?

5. Can Deftco successfully make a Motion for a More Definite Statement? On what grounds? 6. Can Deftco successfully move to strike any portion of the complaint?

7. Can Deftco successfully move to dismiss the complaint under FRCP 12(b)(7)?

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More Facts: Assume that none of the above motions result in a dismissal or transfer. Deftco then files the following document:

Patrick Posh, an individual ) v. )Deftco, Inc., a corporation )

UNITED STATES DISTRICT COURTEastern District PennsylvaniaFile Number 654321-S.O.B.

ANSWER, COUNTERLCLAIM, AND ORDER Filing Date: November 21, 2011

ANSWER 1. Defendant Deftco herein appears in the above-captioned action. 2. Deftco denies any responsibility for the claims set forth in the complaint in this action. 3. Wherefore, Deftco prays that Posh take nothing by his complaint. 4. Pat Posh’s complaint is so poorly drafted, that the defense herein seeks sanctions against Posh’s lawyer, Jumpin’ Jack Flash.

COUNTERCLAIM 5. Deftco herein lodges this claim against Pat Posh. Posh failed to return the cell phone and laptop computer that Deftco provided to Posh, when Posh began working for Deftco’s office manager (Darla Demno). These devices were Deftco’s property. They should have been left with Deftco, or returned, when Posh was fired. REQUEST FOR ATTACHMENT ORDER 6. Posh left his 1999 Audi automobile, PA license # N22986, at the Deftco parking lot when he was fired. Deftco had it towed to the Westchester Towing Garage. Deftco herein seeks to attach Posh’s Audi, so as to recoup the costs it has thus incurred in caring for Posh’s automobile.

Signed: Nancy Grace

Devil’s Advocate & Associates Attorneys for Defendant Deftco

Questions:8. (a) Does the court have subject matter jurisdiction over Deftco’s counterclaim? (b) Can the court now grant sanctions against Posh’s lawyer under FRCP 11? (Do not discuss Jack’s general duties under Rule 11.)

9. Should the court issue the attachment order? (Do not discuss Shaffer v. Heitner’s presence-plus requirement or state attachment law.)

10. Assume that the statute of limitations, and the period within which to serve all defendants, have both expired. Can Patrick Posh add Darla Demno as a defendant in his complaint?

[End of FILE]

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LIBRARY CASE

Wanda Krupski v. Costa CrociereSupreme Court of the United States, 130 S.Ct. 2485 (2010)

We hold that relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party’s knowledge or its timeliness in seeking to amend the pleading. * * * Costa Crociere [cruise boat owner]—represented by the same counsel who had represented Costa Cruise [ticket seller]—moved to dismiss, contending that the amended complaint did not relate back under Rule 15(c) and was therefore untimely. * * * Under the Federal Rules of Civil Procedure [15(c)(1)], an amendment to a pleading relates back to the date of the original pleading when: * * * “(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” * * * As noted, a plaintiff might know that the prospective defendant exists but nonetheless harbor[s] a misunderstanding about his status or role in the events giving rise to the claim at issue, and she may mistakenly choose to sue a different defendant based on that misimpression. That kind of deliberate but mistaken choice does not foreclose a finding that Rule 15(c)(1)(C)(ii) has been satisfied. * * * A prospective defendant who legitimately believed that the limitations period had passed without any attempt to sue him has a strong interest in repose. But repose would be a windfall for a prospective defendant who understood, or who should have understood, that he escaped suit during the limitations period only because the plaintiff misunderstood a crucial fact about his identity. FEDERAL RULES FRCP 11: Signing Pleadings, Motions and Other Papers; Representations to the Court: (b)(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation * * * .

FRCP 12: Defenses and Objections: (b) How to Present Defenses Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: * * * (7) failure to join a party under Rule 19.

JUDICIAL CODE 28 USC §1332: Diversity of Citizenship; Amount in Controversy; Costs (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—

(1) citizens of different States;(2) citizens of a State and citizens or subjects of a foreign state * * * .

STATUTES Nasty Boss Act, 765 United States Code §4321 Corporations and individuals employing blue collar workers must minimize unemployment caused by poor management. * * *

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[End of LIBRARY]

[1] Subject matter jurisdiction: Posh claimDiversity—* individual: no P no D same state * Pat domicile PA per @ * D inc. DE per @ * corp: inc + PPB * PPB = nerve center (Hertz) * only office outside = PA * “equal amount” PA & DE * facts silent re nerve center * inc DE + 50% DE likely DE nerve * P burden estab juris Fed Quest—*D’s conduct within statute? * “blue” +* arg * “caused by” +* arg * “poor mgt” +* arg

[6] Motion to strike [“±” = not & “@” = complaint]

* 12(f) articulation * “should be spelled ‘Demon’” = charac attack * irrelevant to Pat’s claim [7] Failure to join Demno Necessary—* concept articulated * Darla fired; nec complete adjud * OTOH, no charg. alleg v Deftco Feasibility—* concept articulated * infeasible—like Pat, Darla=PA * 19(b) equity test * joint totfeasor usu not indisp * not infeasible re FQ claim [8](a) Deftco’s counterclaimProblem—* no min amt FQ/but diver = 75+

* cell phone+laptop computer ± 75+ * if permissive c-c, needs indep SMJ Cure—* if compulsory counterclaim *13(a) form of supplemental SMJ * logical relationship test (Great Lakes) * GL liberal approach * D: but for firing, Deftco ± keep Pat’s car * P: theft claim independent firing claim * occur different times/circumstances (b) Sanctions v. Jack * “poor drafting” ± function Rule 11 * separate motion required * safe harbor not yet provided * Jack needs time reconsider * sanctions would be premature * notice required b4 issuing sanctions _____________________________________________[9] Attachment request* Is auto in PA forum? * likely b/c Pat domiciled West, PA + PA license * Attach request time answer = premature * no notice & opportunity heard* “Step 1”—FRCP require 1st attempt IPJ * facts silent re attempted IPJ * Posh lives PA forum, thus gen IPJ likely * Posh filed in forum * Why Deftco’s towing cost not part of c-c? _____________________________________________ [10] Add Darla post-statutesAmendments—core concept liberality (eg, Beeck)Relation back—* articulated * Krupski gist * Darla still work for Deftco? Arguments—P: * Darla “knew/should known” * she = Deftco manager fired ‘ee D: * SOL + 120 expired

[2] Personal jurisdiction & VenuePersonal—* MCPARA * Deftco bus 50% PA forum * office in PA = inject into forum * coa probably arose PA (work loca ± given) * facts silent work/firing location * PA likely→PA lic plate & WestTowg * Demno/Pat dom & Deft office all PA Venue—* where IPJ over corp * PA 50% bus + potential PPB = IPJ[3] Transfer* Where might brought— * corp venue = IPJ *gen IPJ over corp DE* Convenience party/wit— * Demno/Pat/Deftco office all appear = PA * assuming firing in PA, ltd access evid DE * P & witness PA conven trumps D conven DE* P (resident’s) choice favored______________________________________________[4] Failure to state claim * FRCP short-plain/notice pldg * Iqbal plausibility * statutory coa higher pleadg standard * caption → “@” w/o stating type case * what torts? (Gillespie) * no charging allegations re Deftco * no link connect firing & Deftco (resp super) * advances in or out of Deftco’s office? * no link connect “advances” & firing * “advances” -> sexual? cash? promotion? * If special dam, failure state (% 1M “total”)[5] More Definite Statement * 12(e) articulation * “total” damages * referring just to Deftco? Posh’s boss too? * if court reluctant 12(b)(6), maybe 12(e) * unclear which person/entity respons for what

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* Where firing occur? (relevant various issues) * When firing occur (possible SOL defense?) * how FQ implicated?

* SMJ tactic -> Darla = PA (but FQ) * P ± mistaken ID * intentionally ± sue Darla b/c = PA

STUDENT ANSWER #1 OF 2(Neither answer has my handwritten comments.

No guarantee mistake-free)ID: 16363Exam Name: Civ_Pro_Slomanson_Fa11_FinalInstructor: Professor SlomansonExam Date: December 5, 2011File Name: 16363-Civ_Pro_Slomanson_Fa11_Final-111205.xmdExam Length: 178 minutes (Started @ 12/05 9:02 AM; Ended @ 12/05 12:01 PM)Downloaded: Nov 23, 2011 12:43 PMUploaded: Dec 05, 2011 12:03 PM

Total Number of Words in this Exam = 3,487Total Number of Characters in this Exam = 20,369Total Number of Characters in this Exam (No Spaces, No Returns) = 16,708

1)

1. Does the court have SMJ over Posh's lawsuit?

Subject matter jurisdiction (SMJ) is the power of the court to hear a type of case. SMJ can be obtained

through 2 avenues: Federal Question SMJ (FQ) and Diversity SMJ.

For Federal Question SMJ, a case may arise from under federal law, US Constitution, or international

treaties. For a case arising under federal law, the defendant's conduct must fit within the statute. There is

no minimum amount in controversy required for FQ SMJ.

For Diversity SMJ, there must be complete diversity; in other words, there must be no plaintiff and no

defendant same state at the time the case is filed. An individual's domicile is determined from the

simultaneous physical presence within the state, as well the the intention to remain there for an indefinite

period of time (and return to whenever absent therefrom). A corporation may be domiciled in either 1 or 2

states: where the corp is incorporated, and where its principle place of business (PPB) is. The PPB is

where the nerve center is, or where the corporate decision making occurs.

P is asserting FQ SMJ for his case, under the Nasty Boss Act. The statute states that the law applies to

corporations and individuals employing blue collar workers, and there is nothing in the facts that suggest

that Deftco (D) has any blue collar employees whatsover. The complaint only mentions an office where P

was an assistant; offices are generally comprised of white collar workers. Further, the heart of the statute

is based on 'poor management.' This case is about P's boss supposedly making unwanted advances on

P; this has nothing to do with the boss's management skills in the office. There is nothing in the facts that

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speak of Demno's good or poor management.Therefore, it is very unlikely that D's conduct fits within the

Nasty Boss Act. Consequently, the court cannot exercise FQ SMJ over P's claim.

For Diversity SMJ, it is established that P is domiciled in Pennsylvania (PA). The question becomes

where D, as a corporation, is domiciled. D is incorporated in Deleware (DE). It is unclear from the facts as

to where D's PPB is. Its sales are equally divided between PA and DE, however D's only office outside

DE is in PA. Where the sales are is not necessarily an indication of the corporate decision making site. In

contrast, an office is a good sign of where the never center can be found. From the facts, it can be

inferred that the majority of the offices are in DE and only one is in PA. We cannot say for certain, but it is

most likely that D's PPB is also in DE because PA only has one corporate decision making cite there. So

D is incorporated in DE and most likely has its PPB in DE. Therefore, D is most likely domiciled in only

DE. Since P is domiciled in PA and D is domiciled in DE, complete diversity is satisfied. The court can

most likely exercise Diversity SMJ over P's claim.

2. Does the court have personal jurisdiction (IPJ) over P's claim? Is there proper venue?

IPJ is the power of the court over nonresident parties. Substantive Due Process involves the Federal Due

Process Check, which determines whether based on D's forum-related activities, would it be just and fair

to have D defend himself in the forum chosen by P.The FDPC is one evolving test that involves minimum

contacts, purposeful availment, and reasonable anticipation. Although there is no litmus test, D's contacts

with the forum cannot be casual or involuntary.

D's minimum contacts with PA are such that FDPC would be satisfied. D has an office in PA, where it has

employed at least 2 individuals. Therefore, D is purposely availing itself to the benefits of PA by deriving

revenue from its office there. More importantly, a substantial amount of the company's sales are derived

from PA and thus D is engaging with PA in a meaningful way. D could reasonably anticipate being haled

into PA to defend itself there by the significant forum-related activies. In addition, the court has specific

IPJ over D because the tort occurred within their office in PA, which creates another connection between

D and the forum. Overall, D has more than minimal contacts with PA, and the court has IPJ over D.

Venue is where P chooses the forum for the suit. P may lay venue either where D resides, or where a

substantial portion of the claim arose. For corporation, where D 'resides' is where the court has IPJ over

D.

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As established above, the USDC in PA can exercise IPJ over D. Also, the substantial portion of the claim

arose in PA, because the entire incident occured within the office there. The relationship and interactions

between the assistant and the boss unfolded within the PA office. Either way, there is proper venue for

this claim.

3. Can D successfully seek transfer of this case to DE's federal district court?

D may request to transfer venues to where the claim might have been brought, and depends on whether

transfer would be convinient for the parties and witnesses involved.

As stated above, the claim might have been brought either where D resides or where the claim arose.

The PA court has IPJ over D, but so does the DE court. The DE court has general IPJ over D since it is

incorporated there, with half of its sales deriving from that region and presumably most of its offices. The

claim might have been brought in DE, however it is unlikely that this forum would be convinient for all of

the parties. The office in which the entire boss/assistant relationship occurred is in PA. P is domiciled

there, as well as all of the possible witnesses from the office (fellow employees of D). It would be highly

inconvinient and expensive for P and the witnesses to have to travel to the DE forum instead. If a judge is

50/50 on the matter, s/he will favor the plaintiff's forum choice. Therefore, the court will most likely deny a

Motion to Transfer to DE.

4. Can D successfully attack P's complaint for failure to state a claim?

A complaint must contain 3 essentials: 1) short and plain statement for the basis of SMJ, 2) short and

plain statement of the charging allegations that must rise to the level of plausibility, rather than possibility.

The claim cannot state mere conclusion, and must state the who, what, when, where, how of the claim, 3)

prayer for relief.

P does explicitly state Diversity and FQ SMJ in his claim, however he did not specifially say where D is

domiciled. Thus,the short and plain statement for the basis of SMJ may not be satisfied.

The main problem is with the second requisite portion of the complaint. P does not state any facts that

demonstrate the causal link between the denial of unwanted advances and the subsequent firing. There

was nothing in the facts that suggested P had stellar work performance regardless of the denial of

advances, nor exactly what the unwanted advances where comprised of (verbal or physical), how often

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these unwanted advances occurred, what was said when P denied the advances, nor how long after the

denial was he fired. Also, there was no facts that indicated the boss had shown inapporpriate behavior in

the past, or whether she was often prone to firing employees. In sum, the claim did not state the

WWWWH, and fails to meet the plausibility standard.

Regarding the third portion of the complaint, P specifially stated the monetory relief he is seeking, so this

element is satisfied.

Overall, it is very likely that the Motion for Failure to State a Claim would be granted because the

complaint fails on the second prong of the charging allegation.

5. Can D successfully make a Motion for More Definite Statement? On what grounds?

A motion for more definite statement is filed because the complaint is so vague or ambiguous that D could

not prepare a response.

As stated above, the complaint is missing the vital causal link between the alleged denial of unwanted

advances and the firing due to the denial. There are no instances or examples of behavior on the part of

either P or the boss where D could reasonably prepare a response to defend itself. The complaint simply

says that unwanted advances were made, P denied them, and that he was fired. There is no 'meat' to this

statement that D can know or work with (please see examples of the types of needed facts that are

missing above in #4). Also, P is seeking compensatory damages in the amount of $1 mil, but he does not

specify whether this is based on lost wages, or the like. Thus, a Motion for More Definite Statement would

most likely be granted.

6. Can D successfully move to strike any portion of the complaint?

D may try to strike portions of the complaint which are irrelevant, immaterial, or scandelous.

There are several portions of the complaint that can reasonably be regarded as scandelous. First, the fact

that the boss made 'unwanted advances' has no backing in the facts. Without specifically stating what

type of advances where made, merely stating them can be scandelous and damage D's reputation for

harboring managers with poor behavior. Secondly, the complaint stated that the boss's name Demno

"should be spelled Demon." This statement is made with the sole purpose to demonize the boss in the

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eyes of the reader; is totally inappropriate in a complaint, regardless of the severity and truth of the claim.

It is clear that this phrase would be scandelous both to the company and the boss's name. The first

portion may not be considered scandelous had there been some concrete facts to justify the phrases of

'unwanted advances', however the second portion calling the boss a demon is outright scandelous.

Therefore, the Motion to Strike would most likely be granted.

7. Can D successfully move to dismiss the complaint under FRCP 12(b)(7)?

This question deals with whether Demno is an indispensible party or a necessary party. An indipensible

party is one that the court cannot proceed without in good faith and equity. A necessary party is one that

is required for complete adjudication of the controversy. If the necessary party is feasible to join the claim,

the party will be joined. If the party is infeasible (in terms of SMJ, IPJ, or perhaps are nowhere to be

found), the court may proceed in such a way as to not adversely affect either the absentee or the parties

already in the litigation. In other words, the court can shape the relief as to not affect the parties.

Here, there is a strong argument that Demno is an indispensible party, because she is at the heart of the

charging allegation. Without having her present, the company would have to rely on other means to

defend itself against her behavior and decisions. Not only is Demno a joint tortfeasor along with the

company, but she is arguably the main tortfeasor. Therefore, the case might not be able to proceed

without her joined into the suit.

However, assuming that Demno is a necessary party, she would be infeasible to join under Diversity SMJ;

she is domiciled in PA along with the plaintiff, and therefore would destroy complete diversity. The court

may decide to proceed with the case, and perhaps assign a percentage of fault to D such that D would

have to pay damages that is separate from the fault of Demno. A judgment may be shaped in such a way

that would not affect the absentee Demno, nor parties already in the litigation (P and D).

It is a close call as to whether the Motion to Dismiss for Failure to Join a Party would be granted, but it

most likely would on the grounds that Demno is an indispensible party.

8.

a) Does the court have SMJ over D's counterclaim?

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This questions deals with whether D's counterclaim is compulsory or permissive. A compulsory

counterclaim is one that involves the same transaction or occurence (T/O) as the original complaint, and

that there is a logical relationship between the underlying facts of the complaint. If D fails to raise a

compulsory counterclaim, then D may not separately file the claim after judgment has been granted. A

court has supplemental SMJ over compulsory counterclaims. A permissive counterclaim can have nothing

to do with the original complaint. The court must independently satisfy SMJ over permissive

counterclaims.

Although D's counterclaim still involves P's employment in the company, his alleged failing to return

company property after being fired has little to do with his boss making unwanted advances and firing him

as a result of his denial. The occurence in the original claim has to do with the relationship and

interactions between the boss and assistant, whereas the transaction in the counterclaim involves failing

to return company property later in the timeline. Therefore, there is little to no logical relationship between

the underlying facts of the complaint and the counterclaim at hand. The counterclaim is thus not

compulsory.

The stronger argument is that the counterclaim is permissive. The facts of the counterclaim are

contractual in nature, because P supposedly kept a cell phone and laptop that should have been left with

or returned to D when he was fired. There may have been an employee handbook signed by P that states

the company property would be considered stolen if not returned. In any case, since the counterclaim has

little to do with the charging allegations in the original complaint, the counterclaim is permissive.

Now the question becomes whether the court can exercise SMJ over the counterclaim. Since there is no

mention of FQ SMJ in the answer, one can assume that D is pleading Diversity SMJ.

For Diversity SMJ, there must be complete diversity; in other words, there must be no plaintiff and no

defendant same state at the time the case is filed. An individual's domicile is determined from the

simultaneous physical presence within the state, as well the the intention to remain there for an indefinite

period of time (and return to whenever absent therefrom). A corporation may be domiciled in either 1 or 2

states: where the corp is incorporated, and where its principle place of business (PPB) is. The PPB is

where the nerve center is, or where the corporate decision making occurs.

Also, Diversity SMJ requires a minimum amount in controversy of over 75k. The party must make a good

faith estimate of the value, and it must appear to a legal certainty that the value does not meet the

minimum before the court will dismiss the case.

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As previously stated in #1, P is domiciled in PA and D is domiciled in DE, thus complete diversity is

satisfied.

The problem here becomes that D's counterclaim does not pray for relief that meets the requisite

minimum amount in controversy. A cell phone and laptop certainly do not equate to over 75k. However,

the counterclaim may satisfy SMJ by supplemental SMJ. If there is a common nucleus of operative fact

and the same evidence between the original complaint and the counterclaim, then the court can exercise

supplemental SMJ over the permissive counterclaim. Here, it is unlikely that there is a common nucleus

and the same evidence used for reasons stated above; the occurence of the firing and the transaction of

misplaced company property do not share the requisite common nucleus and same evidence. The

evidence needed for the original complaint would involve the boss/employee relationship, and the

evidence required for the counterclaim involves just the P's actions with company property when he left.

Thus, the court cannot exercise supplemental SMJ over D's counterclaim.

Overall, the court cannot exercise Diversity SMJ over D's counterclaim, because it fails on the element of

meeting the minimum amount in controversy.

b) Can the court grant sanctions against P's lawyer under FRCP 11?

The court requires that the lawyer sign the pleading, certifying that s/he has conducted an inquiry

reasonable under the circumstances; the pleading is not presented for any improper purpose, such as to

harrass, cause unnecessary delay, or needless increase the cost of litigation. This rule is meant to

prevent frivilous pleadings. The Safe Harbor Doctrine requires the moving party to notify the opposing

counsel of their intent to file this motion so that the opposing counsel has 21 days to amend their

complaint before the motion is filed with the court.

Here, Jumpin Jack flash did sign the pleading, so this element is satisfied.

Using the objective standard, there is a strong argument that he (Jack) did not conduct an inquiry

reasonable under the circumstances. If he had, he would have presented his findings containing facts to

'back up' the mere declarations of unwanted advances. Please see above for examples of the types of

specific facts needed.

The complaint was filed with the court on November 1, 2011, and the Answer, Counterclaim, and Order

were filed on November 21, 2011. The safe harbor rule is satisfied only assuming that P is properly

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notified in 21 days so that he has the opportunity to amend the complaint. Then and only then can the

court grant sanctions against P's lawyer.

9. Should the court issue the attachment order?

In Rem Jurisdiction allows a party to attach an opposing party's property, either tangible or intangible

(such as bank accounts). The party must have completely used means to obtain IPJ over the opposing

party first, before trying to obtain In Rem jurisdiction. The property must be present within the forum,

however mere presence alone is not enough to satisfy due process. There must be 'presence plus'; the

court have used the following basis in the past for presence plus: necessary jurisdiction (exhausted all

means to obtain IPJ and the opposing party is nowhere to be found), the tort occurred in the forum, the

property itself is involved in the dispute, and the opposing party's has more than minimum contacts in the

forum.

D is attempting to attach P's car that he left in D's parking lot when he was fired. The main problem here

is that the court already has IPJ over P; P is present and appears in the court (he is the opposite of

'nowhere to be found'). D cannot automatically go for P's property at the outset.

Assuming D could attempt to obtain In Rem jurisdiction, the car is in the presence of the forum (PA).

Presence Plus is satisfied on different levels; for one, the tort at hand occurred in the forum (D's office is

in PA). More imporantly, P lives in PA, presumably owns or rents a dwelling in PA, and his car is both in

PA and registered there. Despite satisfying presence plus, however, the court cannot issue the

attachment order because PA has IPJ over P in the first place.

10. Can P add Demno as a defendant in his complaint?

Amendments are generally granted liberally, however the longer the party waits to file the amendment,

the less likely it will be granted due to prejudice on the other party. New parties can be amended under

the Doctrine of Relation back if the SOL has not yet expired. Under the Doctrine of Relation Back, the

amendment to a pleading relates back to the date of the original pleading. If the SOL has expired, a new

party can be added only under the rare Krupski exception: when the new party knew or should have

known that the action would have been brought against it, but for a mistake concerning the proper party's

identity. This knowledge is based on the new Party, not the perspective of the amending party.

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Assuming the boss still works for or is in contact with D for the purposes of this claim, Demno subjectively

knew or should have known that the action would be brought against her. This is because she is the main

tortfeasor at heart of this suit; P is not complaining about the company itself, but rather her specific

actions. Demno is a manager at D and surely is aware of the existence of this suit. Did P mistunderstand

a crucial fact about the identity of Demno while the SOL ran out? He probably did not, but the essential

matter here is whether Demno herself knew or should have known the action would also be brought

against her. The company D also may have played a part in knowing that Demno was indispensible and

that D deliberately may have waited for the SOL to run for the case to be dismissed. Therefore, the court

will most likely allow P to add Demno as defendant despite the expiration of the SOL, because Demno

knew or should have known that she is the target defendant.

--------------------------------------------------Question #1 Final Word Count = 3487

STUDENT ANSWER #2 OF 2ID: 16387Exam Name: Civ_Pro_Slomanson_Fa11_FinalInstructor: Professor SlomansonExam Date: December 5, 2011File Name: 16387-Civ_Pro_Slomanson_Fa11_Final-111205.xmdExam Length: 178 minutes (Started @ 12/05 9:02 AM; Ended @ 12/05 12:01 PM)Downloaded: Nov 16, 2011 03:21 PMUploaded: Dec 05, 2011 12:03 PM

Total Number of Words in this Exam = 4,752Total Number of Characters in this Exam = 25,878Total Number of Characters in this Exam (No Spaces, No Returns) = 21,005

1) 1) Does the ct have Subject Matter Jurisdiction (SMJ) over Posh (P) lawsuit?

SMJ is the power of a court to hear a case. The power is over the claim itself. There are two ways to

establish SMJ, 1) Federal Question (FQ), which is when the claim arises from the constitution, a federal

statute, or a treaty, or 2) Diversity of Citizenship (Div) which is when there is no Plaintiff and no defendant

domiciled in the same state (no P no D same state), and the amount in controversy exceeds $75,000.

To establish FQ P must prove that his claim arises under a federal statute. In this case the paragraph one

states that the case arises under the Nasty Boss Act which states: Corporations and individuals

employing blue collar workers must minimize unemployment caused by poor management. P is an

individual who is employed by Deftco (D) which is a corporation. Therefore, P, an individual will likely say

that because he was employed by Deftco (D), a corporation, D is responsible under this federal statute to

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minimize his unemployment caused by poor management. P will go on to say that because he was a

personal assistant to Demno and she fired him because he refused his advances, Demno fits into the

definition of poor management and therefore, because she was a poor manager and fired him, D is

responsible for ensuring that P was not unemployed because of Demno's poor management skills

working for D. P will likely say that because he is unemployed as a result of a bad manager at D, his claim

does fall under the federal statute. However, the facts do not indicate that P was a blue collar worker, so it

is possible that if P is not a blue collar worker then P is not a party that the legislator was trying to protect

when enacting this law, and therefore, his claim would not fall under this statute. The fact that P was

working as a personal assistant seems to imply that he was a blue collar worker because the job is not

prestigious in itself, so it is likely that though the facts do not indicate it, that P was a blue collar worker.

Further, D will likely argue that working as Demno's assistant does not clearly state that P was an

employee for D, and therefore, if he was hired by Demno personally, P would not be a worker of D, and

the conduct of Demno toward P would not fall into the statute. Demno's conduct of unwanted advances

and P's refusal to accept them is not protected by this statute, that it is a sexual harassment suit, and

therefore, because Demno was personally making unwanted advances, this conduct does not have to do

with actual management, therefore, because her conduct is not poor managerial skills but making explicit

comments, Demno's conduct under these facts does not make her a poor manager, and therefore, P's

claim does not fall into the statute. Likely, however, because of the nature of P's position and the fact that

Demno was his boss, and both were employed by D, the claim will fall under the federal statute, and so

there is FQ SMJ.

To establish Div SMJ, both P and D must be domiciled in different states. Domicile for an individual is

presence and intent to remain for an indefinite period of time. The facts specify that P is domiciled in PA.

Domicile for a corporation is determined by state of incorporation and the principle place of business for

the Corp. In this case the facts indicate that D is a Delaware (Del) corporation. To determine where the

PPB of a corporation the nerve center test is used. This looks at where most of the business is conducted

and where the decisions are made. In This case D's sales are equally divided between Del and PA, and D

has only one office outside of Del, which is in PA. The facts are silent to where the decisions are made,

and do not make it clear if one location is more in control than the other, therefore, while it may be that PA

is a PPB, it can not be clearly determined from the facts presented. It seem likely that because D has its

only other office in PA and does half of D's business in PA the office in PA is likely to control half of the

decisions and the office in Del controls the other half of decisions, therefore because the decisions are

split is seems that the PA office can be a PPB. From the facts a definite determination can not be made,

but it seems likely that PA is a PPB because the only twoplaces that D does business are Del and PA,

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and so though the facts do not indicate where D has its PPB, half the business and its only other office

seem to suggest that a major amount of deciisons and business are conduected in PA, which makes PA

just as likely to be a nerve center as the office in Del, therefore it seems plausible that PA is D's PPB, and

for the purposes of the exam, PA will be D's PPB. Therefore, D is domiciled in PA and Del.

Therefore, P is domiciled in PA and D is domiciled in Del and PA. Because both P and D are domiciled in

PA the first element of diversity SMJ is not satisfied, so there is no Div SMJ. However, because there is

FQ SMJ P's case can still be heard in Fed. Ct. and there is SMJ.

2. Does the ct have Personal Jurisdiction and proper venue over claims against D?

Personal jurisdiction is the power granted by the constitution to states to control people and property

within their boundaries. Personal jurisdiction can be in Rem, regarding property, or IPJ for people and

businesses. A court has IPJ if there is general jurisdiction, as defined as 1) D being served with process

in the forum, 2) Ds agent being served with process in the forum, 3) D is domiciled in the forum, or 4) D

waives IPJ in the forum. In this case D is domiciled in the forum as discussed above because D has a

PPB in PA. IPJ can also be established with specific jurisdiction which is over a specific occurrence. This

is established if D has such minimum contacts with the forum so that exercise of jurisdiction does not

offend traditional notions of fair play and substantial justice, if D purposely availed himself to the forum, by

benefiting itself of the forum state and its residents, and by reasonably anticipating being hailed into the

forum to litigate. In this case D does have minimum contacts with PA because it does half of its business

in PA and actually has an office in PA which results in D having direct contact with the forum, so there are

minimum contacts with PA. As well, D sells product in PA, therefore, D purposely availed himself to the

forum because the forums citizens are buying from D and keeping D in business, therefore, D is

benefiting from the citizens of PA. Lastly, because D has an office and does half of its business D should

reasonably anticipate being hailed into the forum for litigation because having an office in PA and selling

product to PA residents it seems likely that if any of the PA residents have issues they will sue D in PA.

Therefore, because D had minimum contacts, purposeful avail ment, and reasonable anticipation, there is

specific IPJ over D as well.

Thus, because there is general and specific IPJ over D, the court does have personal jurisdiction over D.

Venue is the location of a suit (district court where the claim can be brought). For an individual venue is

determined where the claim arose or where the Defendant resides. For a corporation venue is determined

by where ever IPJ can be established. In this case D is a corporation, and as previously discussed there

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is IPJ over D in PA. therefore, because the claim isn't being brought in PA, a location where D is

domiciled, the venue is proper.

3. Can D seek transfer to Del Fed dist. ct.?

Only an original D can seek to transfer a case. When in Fed. Ct a case can be transferred to any other

federal dist ct because they are part of the same system, as long as the request to transfer is only for a

location where the claim could have been brought. While D may seek a transfer the ct weighs in favor of

the P's choice, and looks at the convenience of the parties, the convenience of the witnesses, and the

judicial economy. In this case P could have brought suit against D where D has IPJ (because it is a

corporation and Venue can be brought anywhere there is IPJ for a corporation). Therefore, P could have

brought the suit in PA (where he did), or in Del because as discussed above, D is domiciled in Del,

therefore there is IPJ over D in Del as well. P will likely argue that having the suit in PA is his choice

because that is where he and Demno are located and it is more convenient.However, D will argue that the

are incorporated in Del, and will have all of their documents, attorneys and other necessary information in

Del, but this seems unlikley to allow for a transfer because D likey has this same information in PA where

its only other office is. Therefore, when D seeks to transfer to Del, this is a location where the claim could

have been brought. However, when looking at convenience of the parties, it is likely that because P is

located in PA, and because D has a PPB in PA and does business in PA, that PA will be convenient for

both parties, as well, the witnesses are likely from PA because that is where P worked, and because the

choice of the P is favored, the court will likely not transfer the case to Del Fed. Dist. Court.

Thus, D will likely not successfully get the case transferred to Del.

4. Can D successfully attack P's complaint for failure to state a claim?

Fed. Pleadings require a short clear statement as to why the P is entitled to relief. General pleading

standards require only that D be given general notice of why they are being sued, and D must prove

beyond a reasonable doubt that P can not prove any facts that will support the claim. P's claim is against

D, however, in P's claim he talks about Demno, who is not a party in the suit, but who works for D.

However, because P did not state what the link between being fired by Demno and why he is suing D it

seems likely that there is no actual claim to D. All P states is that he worked as an assistnt to Demno, but

there is nothing stating that he was an acutal employee of D, which would tie him to the suit. There is no

statement that says generally why P is suing D, the claim focuses on what Demno did to P. As well, P

does not state what exactly he is entitled to relief for. The Fed. statute is raised, but in the first paragraph,

so it may be unclear to D as what exactly P is entitled to relief for. Therefore, D will likely argue that they

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were not put only general notice as to why they were being sued, but P will say that claim connecting

them to Demno's behavior falls within the fed statute that is being sued under and that that creates the

entitlement for relief. The fact that the burden is on D to prove that P will have no facts to support his

claim means that D will have to ensure that the conduct of Demno with P does not fall within the Fed.

Statute. If D can prove that P has no evidence to support his claim and because there is nothing in the

claim that clearly states why P is suing D, D will likely be successful with a motion for failure to state a

claim because P does not say why he is entitled to relief from D and D was not given general notice as to

why they were ebing sued.. However, it seems like while filing a motion for failure to state a claim, D

should also file a motion for a more definite statement, because this will likely be successfully to clear up

any ambiguity to why P is suing D.

It seems that under the facts, and the ambiguity between D and Demno, in P's claim, that D will be

successful in filing a motion for failure to state a claim.

5. Can D successfully make a motion for a more definite statement? On what grounds?

A motion for a more definite statement often accompanies a motion for failure to state a claim. The ct

looks to determine whether D can dev elope a defense based on the pleadings. In this case P's complaint

says that he worked for Demno as her assistant, butt P does not establish whether he was hired directly

by Demno, or was an employee of D working in the position of Demno's assistant. Further, there is no

statement that says why P is entitled to relief. P does state a set of facts about an incident that happened

between him and Demno, however, P does not clearly state why this incident entitles him to relief from D.

P will likely state that the statement is clear without being redundant because it facts support the above

argument as to why the conduct falls within he fed. statute, however, in paragraph one it can be argued

that the statute was used to get P into fed ct through FQ SMJ and not the link that ties D into the claim

and gives D liablility. It seems more likely under the circumstances that because the claim does not

specifically state why P is suing D and why P is entitled to relief, that D would not be able to make a

defense based on the information in the claim. Therefore, D would be successfully in making a motion for

failure to state a claim because D cannot defend themselves against liability when there is no statement

explaining why they are liable.

Thus, D would be successful making a motion for failure to state a claim.

6. Can D successfully move to strike any portion of the complaint?

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A motion to strike requests removal of part of a claim because the information contained is of a

scandalous nature, or is irrelevant. In this case P states, "Demno should be spelled 'Demon.'" This is

irrelevant information, that does not have any bearing on the suit, does not support the claim, and does

not offer any factual support for the suit, therefore, the statement made by P is irrelevant. While P may

argue that the statement is there to show how emotionally damaged he is from Demno's advances, and

how bad she was, the statement subjectively implies these and if P wanted to get any kind of point across

should have used factual statements that could be used as evidentiary support. Therefore, how "demonic"

Demno is, is irrelevant to the case against D. Further, the statement is scandalous. Though P will likely

say that Demno was a demon in her behavior of making advances to an employee, and therefore, the

language is not scandalous; the fact that P is simply name calling, and the use of the statement is not part

of the claim at all, makes the statement scandalous. Therefore, P's claim does have information that is

scandalous and irrelevant.

Thus, D would be successful D moved to strike the statement, " Demno should be 'demon'" from t he

claim.

7. Can D successfully move to dismiss the complaint under FRCP 12(b)(7)?

For motion for failure to join a third party for complete adjudication, the party must be a necessary party,

and it must be feasible to join. A party is necessary if the ct can not accord complete adjudication without

the party, if the absentee may be adversely prejudiced, if the party is not adequately represented by the

participating parties,or if D may be imposed of double or multiple inconsistent adjudications. If the party is

necessary, the ct will look to determine if it is feasible to join, if not feasible the ct will decide to dismiss

the case with equity and good conscious or to move forward. To make this decisions the court will look to

see if there are other ways to protect the absentees interest, if the ct can adequately adjudicate for P and

give P some relief, if the case is dismissed if P will have other means of obtaining relief.

In the absentee party is Demno. She is the reason for the complaint because it was her actions of making

advances and then firing P that lead to the law suit. If not for her then Ps case against D would not exist.

In this case, because Demno is the cause of the claim, if she is not included in the suit, D will likely be

imposed of double or multiple adjudications because they will be paying for Demno's liability as well as

there own. Therefore, in order for the court to accord complete adjudication, Demno needs to be present

so that she will be liable for her actions, and so that D will not have to pay for her liability. As well,

Because Demno is also liable, P could sue her as well. The cases revolve around the same transaction or

occurrence, and would have the same evidence, therefore, for judicial economy, Demno needs to be a

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party in the suit because D will have to go sue Demno separately, and if they are thus exposing

themselves to multiple adjudications. Therefore, Demno is a necessary party. It must be feasible to join,

so joining Demno must not destroy diversity. Assuming that there was diversity, adding Demno would

destroy diversity because she is domiciled in PA. This would result in her being from PA on the defendant

side and P is domiciled in PA as well, so joining Demno would destroy diversity. (because this is a FQ

case, joining her would be alright because there is no diversity necessary in FQ SMJ). Because joining

Demno would destroy diversity, it is unfeasible to join her, and the court needs to decide wether to

dismiss the case or to move forward. In this case the ct may decide to limit D's liability by providing some

relief to P, however, because by not joining D may be imposed of double or multiple adjudications, and

because P can sue in state ct (giving him another way to obtain relief), the court will likely decide to

dismiss with equity and good conscious.

Therefore, D will be successful if D moves to dismiss the complaint for failure to join a third party for

complete adjudication.

8 (a). SMJ over D's counter claim

There are two types of counter claims. 1) permissive, where the claim does not arise from he same

transaction or occurrences, and independent SMJ is required. 2) Compulossory, where the claim does

arise from the same T/O and independent SMJ is not required because the claim satisfies supplemental

SMJ by definition.

To determine what kind of counter claim it is it is necessary to look at whether the counter claim is from

he same T/O. The ct looks at whether the same evidence will be used, and , but for the original complaint

would the counter claim be brought. If yes, the counter claim is compulsory.

D's counter claim is against P for retaining a cell phone and lap top after he stopped working for them. P

was fired by Demno therefore, the evidence regarding the end of P's employment would be substantially

the same, further, but for Demno firing P, P would not have had to turn in the cell phone and lap top

because he would still be working there. Therefore, it can be established that D's counterclaim does arise

from the same transaction or occurrence and is thus a counter claim. A counter claim must be brought, or

the Defendant loses their right to sue later. In this case D must bring the counter claim against P. While P

will likely argue that the counterclaim is not compulsory because it has to do with property he got

personally from D, and is permissive and should be brought later, however, because if Demno had not

made advances that P rejected and resulted in his firing, he wouldn't have had to return them, it is likely

that the counterclaim is still compulsory. Therefore, because the claim is compulsory, independent SMJ is

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not required under supp jurisdiction which allows for a case that normally does not satisfy FQ SMJ or Div

SMJ to be brought in under a another case, that has already established SMJ. The counter claim does

not satisfy independent SMJ because it is not a FQ and the amount in controversy is likely under $75,000,

however because he counterclaim is from the same T/O as the original complaint there is Supp SMJ.

Thus, the court does have SMJ over Ds counterclaim.

8 (b). Can the ct grant sanctions.

Sanctions are used to deter not to punish. The court can grant sanctions for if a claim is being used for an

improper purpose, such as to harass, cause unnecessary delay, or needlessly incurred the cost of

litigation. However, the safe harbor rule requires that before a ct grant sanctions the Party must be given

notice and an opportunity to correct. If not corrected with in 21 days a motion for sanctions can be brought

and a ct may decide to grant them. Sanctions are not always monetary, and if the correction has been

made the ct may not sanction it.

In this case P filed the original complaint of Nov 1, 2011 and the answer requesting sanctions was made

Nov, 21, 2011. First, in order for a court to grant sanctions the request must be filed in a motion, not in an

answer. So by seeking sanctions against Ps lawyer in an answer, the ct can not grant sanctions because

an answer does not ask the court to do anything, it is just making statements. Further, assuming that the

motion for sanctions was made at the same time that the answer was given, the answer was filed 20 days

after the original complaint. That means that, even if D had given Ps lawyer notice of the motion for

sanctions immediately, D did not let 21 days past as required by the safe harbor rule, before filing with the

court, and therefore, P's lawyer was not given enough time to make corrections. Therefore, because the

requests for sanctions was made in an answer, and P's lawyer was not given adequate time to correct,

the ct will not be able to grant a motion for sanctions against P's lawyer. Further, even if the ct was able,

they may decide not to, as sanctions are in the control of the court and are not guaranteed to be granted.

9. Should the ct issue the attachment order?

The attachment of property can be used as a way of obtaining IPJ, however, simply attaching the property

is not enough to establish IPJ. Property must be attached prior to judgment and can not be seized prior to

any hearing. Property can be attached to a suit to establish IPJ if D can not be found or if the property is

directly related to the claim

In this case, the court already has IPJ over P because he was the original Plaintiff. There is nothing in the

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facts to indicate that P fleed the area and can not be located, therefore, because there is all ready IPJ

over P there is no need to establish in Rem jurisdiction by adding property, therefore, the ct should not

attach the property because P can be located. Further, there is thing in the request to establish that P has

been given notice and opportunity to argue at a hearing before this property gets added, therefore, the

automobile can not be added until there is a hearing where P can defend himself. As well, Ds counter

claim is around property that was initially D's, therefore, though D may have en cured an expense with P's

car, the car has nothing to do with either the original complaint or the counter claim. Therefore, because

the claim does revolve around the car, there is IPJ over P, and there is nothing to indicate that a hearing

has already happened regarding this car, the car should not be attached to the claim. As well, in order for

D to file another counter claim around the car in order to have the car attached, it would have to be

determined whether it was a permissive counter claim, requiring independent IPJ, likely because it is an

old car, the amount in controversy would not exceed the minimum.

Thus, because of the facts above, the court should not issue the attachment order.

10. Can P add Demno as a D to his complaint?

A P must add a D when D files a motion for failure to join a third party, and complete adjudication can not

be completed in the party's absence, and the party may be adversely prejudiced and it is feasible to join

and it is feasible to join. In this case all are true except it is not feasible to join Demno (see above

analysis). However, assuming that it is feasible, when the SOL has expired the only way to add a new

party is when the amended complaint relates back to the original. To determine whether a new party

relates back when the amendment changes the name of the party against whom a claim is asserted and

if, within the period provided for serving the summons and complaint, the party to be brought in by the

amendment received such notice of the action that it will not be prejudiced in defending the merits and

knew or should have known that the action would have been brought against it.

In present case the SOL has expired so adding Demno would normally not be allowed, however, because

the amendment is to name of a part against whom P is asserting a claim, in this case Demno, and

because P did file a complaint with D within the SOL, and because Demno works for D, it is likely that

when D received notice of the suit with Demno being named in the complaint, they went right to her

because P worked under her and she was the one that fired her, and it is also likely that when they went

to Demno they told her about the suit, and so if Demno was added to the complaint she did receive notice

enough or not be prejudiced, and would be able to develop a defense. As well, because it is likely that D

in the very least asked Demno about the complaint, it is likely that Demno knew, or should have known

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that she would have an action brought against her. HOwever, Demno will likely argue that the SOL has

run, and because P named her in the statements on the complaint, there was no mistake of fact for which

P did not add her in the beginning, and so because there was no mistake of fact, adding her does not

relate back. However, P will likely say that he was mistaken when suing only D because she worked for

him. It seems more likely that because Demno knew or should have known about the suit, and that she

did likely receive notice about the suit that there will be relation back. Therefore, adding Demno to the suit

does satisfy the relation back test, and so by adding her, even though the SOL has passed, the date that

she was added will be the date that the original complaint was filed, which is within the SOL.

Thus P can add Demno as defendant to his complaint.

--------------------------------------------------Question #1 Final Word Count = 4752

END OF EXAM and End of file

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