February 2017 Second Example Ten-point Answers to Virginia Essay Questions

February 2017 - QUESTION 4 – VIRGINIA BAR EXAMINATION

      At the end of the 2015 academic year, Duke, a college junior, agreed to drop off two of his classmates at their homes in Abingdon, Virginia, where all three of them resided at the time. He was driving his SUV near Harrisonburg, when he had to brake suddenly to avoid a disabled beer truck, and Penny, who was sitting in Duke's front passenger seat, was injured when the vehicle struck an embankment. Duke and the other passenger, Buddy, who was sleeping in the back seat, were not injured in the crash.

      Penny hired Lester, an Abingdon attorney, who, on December 10, 2016, filed a Complaint on Penny's behalf in the Circuit Court for Washington County (Abingdon) against Duke for negligence and sought $90,000 in compensatory damages for her injuries.

      After graduating in May 2016, Duke and Buddy both moved to Knoxville, Tennessee, to work for Duke's grandfather. Buddy did not like working, and in January 2017 he moved back to Harrisonburg, Virginia, to begin graduate studies.

      On January 18, 2017, Duke was personally served in Knoxville with Penny's Summons and Complaint. Duke hired a Knoxville attorney, Andrew, who, on February 1, 2017, filed an Answer and Notice of Removal to the United States District Court for the Western District of Virginia – Harrisonburg Division. He chose the Harrisonburg Division, as opposed to the Abingdon Division, on the premise that the accident occurred near Harrisonburg. Andrew simultaneously filed and served all other documents in state court necessary to effect the removal.

      The Notice of Removal recited that it was based on diversity jurisdiction, i.e., that Penny was a citizen of Virginia, and Duke was a citizen of and domiciled in Tennessee at the time the suit was filed and that the amount in controversy satisfied the requirement. The Notice further asserted that venue was proper in Harrisonburg because that is the division where the accident occurred.

      On February 15, 2017, Lester filed a Motion to Remand the case to the Circuit Court of Washington County on the following grounds: i) complete diversity did not exist at the time the accident occurred as Penny and Duke were both Virginia residents and ii) the case was improperly removed to the Harrisonburg Division as opposed to the Abingdon Division. Simultaneously, and without further inquiry into the facts, Lester filed a Motion to Amend the Complaint to add Buddy as a defendant, alleging that Buddy contributed to Penny's injuries because he negligently failed to warn Duke of the disabled beer truck just prior to the impact. Andrew filed a response opposing the addition of Buddy as a defendant, asserting that it was done in bad faith. He also filed a Rule 11 Motion for Sanctions against Lester, asserting that the Motion to add Buddy was frivolous. On the day before filing the Motion for Sanctions, Andrew had telephoned Lester and told him he would be filing the motion on the next day. Lester later moved to dismiss the Motion for Sanctions.

(a) Was the case properly removed to federal court? Explain fully. (b) How is the Court likely to rule on Penny's Motion for Remand? Explain fully. (c) What arguments should be made in support of and against the Motion to Amend the Complaint to add Buddy as a defendant, and how is the Court likely to rule? Explain fully. (d) What arguments should be made in support of and against the Motion for Sanctions, and how is the Court likely to rule? Explain fully.
  (a) as the case properly removed to federal court? Explain fully.
     
  (b) How is the Court likely to rule on Penny's Motion for Remand? Explain fully.
     
  (c) What arguments should be made in support of and against the Motion to Amend the Complaint to add Buddy as a defendant, and how is the Court likely to rule? Explain fully.
     
  (d) What arguments should be made in support of and against the Motion for Sanctions, and how is the Court likely to rule? Explain fully.

February 2017 - QUESTION 4 – EXAMPLE ANSWER #1

Part A

Yes, the case was properly removed to Federal Court on the basis of diversity jurisdiction.

In general, a defendant can remove a case initially filed in state court to the federal court encompassing the state court if the case qualifies for diveristy jurisdiction or federal question jurisdiciton. Federal question jurisdiction exists if the basis of the plaintiff's claim is federal law. Diversity jurisdiction is satisfied if there is complete diversity of citizenship between all plaintiffs and all defendants (i.e., as between each plaintiff and each defendant, there is diversity of citizenship) and the amount in controversy exceeds $75,000. It can also be satisified if the parties include citizen(s) of a state and a citizen of a foreignn nation with complete diversity, and the amount in controversy exceeds $75,000.

Here, the basis of Pennyy's claim is negligence. Negligence cases arise unnder state law, not federal law. Thus, federal question jurisdiction cannot foorm the basis for removal.

However, there is diversity of citizenship between the parties. Citizenship is determined at the time of filing the suit. In this case, the suit was filed on December 10, 2016. At that time, Penny was a citizen of Virginia because she was domiciled there.

Duke was a citizen of Tennessee. The facts indicate that Duke was a citizen of Virigina until May 2016 when he moved to Tennessee. For someone to establish a new domcile, they my establish physical presence in the new state and an intent to make it their permanent home. Here, Duke did actually move to TN, so he was physically present there. Further, he intended to make it his permanent hoome because he moved there for work. Onn the current facts, there is nothing to indicate that at the time of moving, Duke did not intend to stay in TN, as his desire to pursue graduate studies materialzed after the move when he didn't like working.

Thus, at the time of filing, complete diversity of citizenship existed between Penny (VA citizen) and Duke (TN citizen).

Further, the amount in controvery was $90,000, thus exceeding the requisite $75,000 on the face of the well pleaded complaint.

Further, a Notice of Removal must be filed within 30 days of service of the pleading that shows the basis for removal. Here, Duke was served on January 18, 2017. Filing a Notice of Removal by February 1, 2017 is within the requisite 30 day period. It does not matter that more than 30 days passed from when the suit was initially filed because there was a delay iin serving Duke.

In general, a case filed in state court must be removed to the Federal court encompassing the state court. As such, itt was improper for Duke's attorney to file the Nottice of Removal in the division to which he wanted the case to be transferred based on venue. If Duke's attorney wanted to transfer venue, he should have filed a motion to transfer venue. Nevertheless, this error is unlikely to be fatal to his Notice of Removal.

Part B

The court is likely to reject remand based on lack of complete diversity at the time of the accident and that the case was removed to the wrong division.

The court will reject Leter's argument that the case should not be removed because complete diversity of citizenship did not exist at the time of the accident. For purposes of diversity jurisdiction, the key inquiry is whether there is diversity of citizenship at the time of filing of the action, not when the cause of action arose. As discussed iin detail above, at the time of filing the action, there was diversity of citizenship beecause Penny was a citizen of VA and Duke was a citizen of TN.

Lester is technically correct that the case was improperly removed to the Harrison Division while the case was initially filed in Abingdon. As discussed above, a proper removal removes to the federal court encompassinng the state court. However, the federal court is unlikely to deny the Notice of Removal on this basis. The court will more likely transfer the case to the proper court.

Part C

Arguments Against Motion
The opposinng party should argue that lester is trying to add Buddy soleyl to defeat diversity of citizenship. As explained above, there must be complete diversity of citizenship for a diversity grounds for removal. Buddy was a TN citizen when he moved there for work with the intent to stay there. However, hee has since moved back. Lester will likely argue that he is now a VA citizen. Thus, since Buddy and Penny are both VA citizens, there's no diversity of citizenship. The opposing party will point to this and say adding Buddy is an improper means to destroy citizenhip. This is eespecially true here since Buddy clearly didn't have a duty to warnn and was sleeping in the back seat.

Arguments for Motion
Lester will argue that buddy is not a mere pretext disguising his desire to defeat diversity of citizenship. Instead, he'll argue that Penny's cause of action against Buddy arisees from the same transcation or occurrnece and the original claim, and expeediency therefore cuts in favor of including the claim in this case.

The court is likely to deny the motion because the attempt to add Buddy is an attempt to improperly defeat diversity of citizenship.

Part D

Against the Motion for Sanctions: It should be argued that the safe harbor provisions of Rule 11 were not abided by here. You have to give the other party notice of the error and a chance to fix it before filing the motion. The telephone call one day before did not comply with the waitinng period.

For the motion: It should be argued that Lester's failure to investigate the facts before movinng to add Buddy was improper. He has a duty to investigate and assert via signature that there's a good faith basis for all his pleadings. His failuure ot investigate, and apparent attempt to defeat diversity improperly supports sanctions.

The court will likely overrule the motion for saanctions because the safe harbor provision was not followed.


February 2017 - QUESTION 4 – EXAMPLE ANSWER #2

a)

      Yes. The case was properly removed to federal court. For a case to be properly removed to federal court it must be filed in a court that it already could have been filed in and filed within 21 days. It was filed within on Feb 1 which is within 21 days of Duke reciving service (Jan 18) and it was filed in the proper court since Harrisonburg is the situs of the accident and venue is proper where an accident occured.

      The case was properly removed to federal court. Cases can be removed to federal court if they are brought in a forum where they originally could have been brought and meet the subject matter jurisdiction requirements. Therefore, if they have 1) Federal Question Jurisdition or 2) Diversity Jurisdiction.
      Here, there is no federal question in the facts so we do not have that to obtain smj. The question is whether we have diversity jurisdiction. First, the amount in controversy must exceed $75,000. Here, the amount in controversy is 90,000 so we clearly meet the first requirement.
       Next, A court has diversity jurisdiction when there is complete diversity. Complete diversity is when each plaintiff resides in a different state from every defendant. Residence for this purpose equates to the person's domicile. Domicile for the purposes of diversity jurisdiction is determined at the time of filing.
       The issue here is whether Duke was a Virginia resident at the time of filing or a resident of Tennessee. In order to determine domicile, one must determine the presence of the defendant in the intendened domicile and intent of the party to make the particilar place his or her domicile. Here, Duke moved to Knoxville, Tennesseein May of 2016 to work for his grandmother. While there are no other facts about his move, he has been there for 8 months, obtained a permanant job, has family there, and there is no evidence to the contrary that he does not have any intent to stay, it is likely that Duke has established his domicile in Tennessee. The intent and presence test has been satisfied by his presence and the facts stated. Since the complaint was filed on December 10th, 2016, Duke was a citizen of Tennessee at that time, Penny was a citizen of Virginia and the amount in controvery was satisfied so subject matter jurisdiction was proper.
      Additionally, removal must be brought in a court where the case originally could have been brought. A federal case can be brought where the defendant resides or any forum where a substantial part of the claim arose. Here the case was removed to Harrisonburg, the situs of the accident. Therefore removal was proper.

      Overall, removal was proper because it was brought in a proper court and there is subject matter jurisdiction based on diversity.

      b)
      The court is likely to deny Penny's motion to remand. A party can move to remand a case if he or she feels the removal was impoper. Here, the case was properly removed to federal court (as stated above) so the court will Penny's motion.

      The case was properly removed to federal court. Cases can be removed to federal court if they are brought in a forum where they originally could have been brought and meet the subject matter jurisdiction requirements. Therefore, if they have 1) Federal Question Jurisdition or 2) Diversity Jurisdiction.
      Here, there is no federal question in the facts so we do not have that to obtain smj. The question is whether we have diversity jurisdiction. First, the amount in controversy must exceed $75,000. Here, the amount in controversy is 90,000 so we clearly meet the first requirement.
      Next, A court has diversity jurisdiction when there is complete diversity. Complete diversity is when each plaintiff resides in a different state from every defendant. Residence for this purpose equates to the person's domicile. Domicile for the purposes of diversity jurisdiction is determined at the time of filing.
      The issue here is whether Duke was a Virginia resident at the time of filing or a resident of Tennessee. In order to determine domicile, one must determine the presence of the defendant in the intendened domicile and intent of the party to make the particilar place his or her domicile. Here, Duke moved to Knoxville, Tennesseein May of 2016 to work for his grandmother. While there are no other facts about his move, he has been there for 8 months, obtained a permanant job, has family there, and there is no evidence to the contrary that he does not have any intent to stay, it is likely that Duke has established his domicile in Tennessee. The intent and presence test has been satisfied by his presence and the facts stated. Since the complaint was filed on December 10th, 2016, Duke was a citizen of Tennessee at that time, Penny was a citizen of Virginia and the amount in controvery was satisfied so subject matter jurisdiction was proper.

      Additionally, removal must be brought in a court where the case originally could have been brought. A federal case can be brought where the defendant resides or any forum where a substantial part of the claim arose. Here the case was removed to Harrisonburg, the situs of the accident. Therefore removal was proper.

      Therefore Penny's motion should be denied.

      c) In support of a motion to amend the complaint

      One could argue that the motion to ament the complaint to add Buddy as a defendant should be granted because 1) Generally, in fedeal court a motion to amend is permitted as a right before the defendant has served his or her answer. After that, the party must receive leave of court. Here, the defense had only served a responsive pleading, so it could be argued that the plaintiff had a right to amend her answer as a matter of right to add the defendant Buddy to her compliant. Morover, it could be argued that Buddy is a necessary party to the litigation meaning that Penny's interests will be harmed if he is not added to the litigation. If he is deemed to be indespensible, meaning that ligation cannot go forward without him the court will look at whether it can retain jurisdiction will his addition and if not the case will have to be dismissed unless it causes a manifest injustice. Since Buddy's negligence arises out of the same incident, he'll likely be found to be a necessary but not indespensible party. The court will likely grant the motion to add him to the ligiation unless he destorys jurisdiction.

      In opposition to motion to amend the complaint to add Buddy as a defendant

      One could argue that the motion to amend the complaint to add Buddy as a defendant should be denied. Generally, in fedeal court a motion to amend is permitted as a right before the defendant has served his or her answer. After that, the party must receive leave of court. Here, the defense had already served a responsive pleading, so it could be argued that the court should see this is an answer. That will likely fail because a notice of removal is not the same as an answer, and does not have the same limiting effect. One could also argue that Buddy is not a necessary party or indespensible to the litigation and that he can assert his own action independantly. His presence does not limit the victim's recovery, he is not hampered from being joined and justice can be effected without joining him to the litigation.

      d)

      It could be said that the attorney believed that the other attorney was actually making frivolous claims and adding a frivolous defendant. Therefore, that would be the only positive thing to say in his favor. However, sanctions of attorneys under FRCP allow a safe harbour rule where you must give notice to the attorney you are filing sanctions on by giving them a copy of the sanction you intend to file. They have 21 days to correct the mistake, if they don't then you are entitiled to file the motion with the court. The attorney in these facts handled the motions sanctions incorrectly, therfore, it should not me grandted and the court should rule in Lester's favor.