Civ Pro - Missed Q's

Question 1

A resident of State A sued a resident of State B in federal district court in State B for breach of K. Jurisdiction was based on diversity of citizenship. The P alleged that the K was entered into in State C and was to be performed in State D. The P alleged that the defendant failed to perform. What substantive law should the federal district court apply?

A. The law that State D state court would apply.
B. The law that the State C state court would apply.
C. The law that the State B state court would apply.
D. The law that the federal district court believes most logically applies.

Answer 1

C. The law that the State B state court would apply.

Question 2

A plaintiff, a citizen of State A, sued a defendant, a citizen of State B, alleging that the defendant violated the Civil Rights Act by refusing to serve the plaintiff in her restaurant. The plaintiff brought his suit in state court in State B, asking for damages of $100,000. The defendant seeks to remove the case to the United States District Court for the District of State B, and the plaintiff opposes removal.

Is the case properly removable?

A. No, because the defendant is a citizen of the forum state.
B. No, because the state court has concurrent jurisdiction, making removal improper.
C. Yes, because diversity of citizenship exists and the amount in controversy is more than $75K.
D. Yes, because a federal question has been presented.

Answer 2

D. Yes, because a federal question has been presented.

Question 2

While working on a site in State A, a State B construction worker was standing near a steel crane when the crane’s boom swung near a high tension power line. The worker was electrocuted and severely injured. The worker filed an action in federal district court against the power company that owns the power lines. The action seeks $500,000 and alleges that the power company’s negligent construction, maintenance, and operation of the power lines caused the injury. The power company is a State A corporation and all its operations are in State A. The power company filed a third-party complaint against the owner-operator of the crane, a State B citizen. The third-party claim is based on state law and alleges that the crane’s owner-operator is liable to the power company for any liability the power company has to the injured worker. The worker amended his complaint to add a state law negligence claim for $500,000 against the crane’s owner-operator.

Does the federal court have subject matter jurisdiction over the worker’s claim against the owner-operator of the crane?

A. No, because the court does not have supplemental jurisdiction over the worker’s claim against the owner-operator of the crane.
B. Yes, because the claim arose from the transaction or occurrence as the worker’s claim agains the power company.
C. Yes, because all claims asserted arose from a common nucleus of operative fact.
D. Yes, because the State B worker has sufficient contacts with State A.

Answer 2

A. No, because the court does not have supplemental jurisdiction over the worker’s claim against the owner-operator of the crane.

Question 3

A plaintiff brought an action in a state court against a defendant, a city police chief in the state, alleging civil rights violations under 42 U.S.C. section 1983. The defendant moves to dismiss the state suit on the ground that the action must be brought in federal court because a federal question is involved.

Should the court grant the defendant’s motion to dismiss?

A. Yes, because the federal court has exclusive jurisdiction over the action.
B. Yes, but the plaintiff may defeat dismissal by adding a state law claim.
C. No, because the federal courts and state courts have concurrent jurisdiction over the action.
D. No, but the defendant may remove to federal court if he has a defense based on federal law.

Answer 3

C. No, because the federal courts and state courts have concurrent jurisdiction over the action.

Question 4

Select the statement that best describes the relationship between removal and venue:

A. In a properly removed case, venue is proper in the federal court of the state where the ase was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state.
B. In a properly removed case, venue is proper in the federal court of the state where the case was pending, but only if venue would have been proper had the plaintiff originally filed the action in federal district court of that state.
C. Venue and removal have no correlation.

Answer 4

A. In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state.

Question 5

A State A citizen and a State B citizen were in an automobile accident in State B. The State B citizen filed a negligence action for $500,000 against the State A citizen in a federal district court located in State B. The State A defendant would prefer to litigate the case in a State B state court. The State A defendant thus filed a notice of removal, seeking to transfer the case to a State B state court.

Should the federal court grant the motion?

A. Yes, because federal diversity jursidiction is not needed to protect the State A citizen from the potential bias of State B courts if the State A citizen requests that the matter be litigated in the State B courts.
B. Yes, because tort actions arising from accidents in State B should be litigated in State B state courts.
C. No, because removal to state court is not available for cases that are properly filed in federal court and are within the federal court’s SMJ.
D. No, because removal to state court is not available when on the of the parties is a citizen of the state in which the action is pending.

Answer 5

C. No, because removal to state court is not available for cases that are properly filed in federal court and that are within the federal court’s SMJ.

Question 6

A patient sued a surgeon for medical malpractice, alleging that the surgeon used an improper procedure during cardiac surgery, thereby permanently injuring the patient. The surgeon then wrote to a colleague, who was a renowned cardiologist, asking whether in her opinion the procedure was proper. In response, the colleague stated that the procedure was likely improper, but that she was unsure whether the patient’s injuries resulted from it. After receiving the colleague’s letter, the surgeon did not have any further communication with her about the matter.

Is the letter discoverable?

A. No, because the colleauge did not have first-hand knowledge regarding the surgery that she was evaluating.
B. No, because the colleauge will not testify at trial on behalf of the doctor.
C. Yes, because the colleague was not retained or specially employed by the doctor.
D. Yes, because the colleague is not an expert.

Answer 6

B. No, because the colleague will not testify at trial on behalf of the doctor.

Question 7

A car collector bought a car with gold leaf paint from a manufacturer. During the first month, all the gold leaf paint peeled off. The collector sued the manufacturer, and during discovery served an interrogatory asking the manufacturer to identify all other purchasers of the gold leaf paint over the previous 10 years. The manufacturer was aware that only about 25 of the 2 million buyers of its cars have ordered the gold leaf option. The manufacturer has retained copies of all sales forms, but has not maintained separate files of the buyers of each particular option.

In a court using the federal rules, what are the manufacturer’s obligations with respect to the collector’s interrogatory?

A. It must search its files and then disclose the information.
B. It may allow the collector to search the records himself.
C. It may respond by stating that only about 25 of the 2 million buyers ordered the option.
D. It may state that searching the records is too great a burden and so it’s excused from answering the interrogatory.

Answer 7

B. It may allow the collector to search the records himself.

Question 8

A manufacturer sued a department store for breach of contract, alleging that the department store failed to pay for a shipment of watches delivered by the manufacturer to the department store in July of that year.

At trial, the manufacturer introduced evidence regarding the department store’s failure to pay for the watches. In addition, it introduced evidence that the department store failed to pay for a shipment of necklaces, also delivered that July pursuant to a separate contract. At the close of the manufacturer’s case, the department store introduced evidence showing that both the watches and the jewelry were defective. The jury returned a verdict for the manufacturer, awarding the manufacturer damages for breach of both contracts. The manufacturer then immediately moved to amend its complaint to conform to the evidence introduced at trial.

Should the court allow the amendment?

A. Yes, because the department store impliedly consented to the introduction of the evidence.
B. Yes, because the parties entered into the K’s at approximately the same time.
C. No, because the motion should have been made before the verdict was rendered.
D. No, because the defendant must have had knowledge of the claim when the complaint was served.

Answer 8

A. Yes, because the department store impliedly consented to the introduction of evidence.

Question 9

An aerospace company contracted with a propeller manufacturer to provide propellers for its planes. Dissatisfied with the quality of the propellers, the aerospace company filed a diversity action against the propeller company for breach of contract, claiming breach of its express warranty and breach of the implied warranty of merchantability.

At the conclusion of the trial, the aerospace company submitted proposed jury instructions listing a number of defenses that the jury could not properly consider, including the aerospace company’s assumption of risk and its failure to test the propellers. The court refused to give these instructions, and instead instructed the jury on the elements of breach of express and implied warranty. The aerospace company did not object to the instructions given by the court.

After the jury returned a verdict in favor of the propeller manufacturer, the aerospace company moved for a new trial on the ground that the court erroneously refused to accept the aerospace company’s requested jury instructions. The court denied the motion and the aerospace company filed a timely appeal.

Which statement best describes the aerospace company’s rights on appeal?

A. The aerospace company waived it’s right to object to the jury instructions.
B. The appeals court may review the court’s refusal to include the instructions, applying a de novo standard of review.
C. The appeals court may review the court’s refusal to include the instructions, applying a plain error standard of review.
D. The appeals court may review the court’s refusal to include the instructions, applying a harmless error standard of review.

Answer 9

C. The appeals court may review the court’s refusal to include the instructions, applying a plain error standard of review.

Question 9

A woman sued her employer for sexual harassment. At the close of the trial, the employer made a motion for judgment as a matter of law, arguing that the woman’s evidence was insufficient to establish the elements of her claim. The court denied the motion.

When the jury returned a verdict in favor of the woman, the employer renewed its motion for judgment as a matter of law. In addition to the renewed motion for judgment as a matter of law, the employer also moved for a new trial, asserting that the verdict was against the weight of the evidence. The court denied both motions.

If the employer appeals the denials of both the renewed motion for a judgment as a matter of law and the motion for a new trial, what is the appropriate standard of review?

A. De novo for the renewed motion for JMOL and abuse of discretion for the new trial motion.
B. Clearly erroneous for the renewed motion for judgment as a matter of law and de novo for the new trial motion.
C. Abuse of discretion for both.
D. De novo for both.

Answer 9

A. De novo for the renewed JMOL and abuse of discretion for the new trial motion.

Question 10

Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is prevented from asserting the same cause of action in a later lawsuit by the doctrine of claim preclusion (res judicata).

When the claimant won the earlier lawsuit, the claim is said to be:

A. Barred by the prior judgment
B. Either merged into or barred by the prior judgment
C. Merged into the prior judgment

Answer 10

C. Merged into the prior judgment

Question 11

An employee filed an action against his employer in federal district court, claiming unlawful age discrimination in employment. The employee did not like the judge who was assigned to the case because the employee perceived the judge to be antagonistic to employment discrimination claims. Two weeks after filing the action and before the employer served its answer to the complaint, the employee voluntarily dismissed the action. Several months later, the employee filed an identical action in the same court.

Is the employee’s claim barred because of the prior dismissal?

A. Yes, because a voluntary dismissal operates as adjudication on the merits and bars subsequent assertions of the same claim.
B. Yes, because, while voluntary dismissals for valid reasons will not preclude subsequent assertions of a claim, the employee’s reason for the voluntary dismissal in this instance is invalid and thus bars the subsequent assertion of the claim.
C. No, unless the employer properly asserts the affirmative defense of claim preclusion.
D. No, because the prior dismissal was without prejudice since the employee had not previously dismissed the case.

Answer 11

D. No, because the prior dismissal was without prejudice since the employee had not previously dismissed the same claim.

Question 12

A citizen of State A filed a breach of contract action against a citizen of State B in a State A state trial court. The State B defendant timely and properly removed the action to the United States District Court for the District of State A. The defendant then filed a motion to dismiss the action based on insufficient service of process. Following a hearing, the court found that service was proper and denied the motion. The defendant then filed her answer, responding to the merits of the complaint and asserting that the case should be dismissed on the grounds that another action was pending between the same parties for the same cause in a State B state court. The State A Rules of Civil Procedure provide that a party waives the right to seek dismissal on that ground if the party files a pre-answer motion to dismiss and does not assert that ground in the motion.

Should the federal court hold that the defendant has waived the right to seek dismissal based on the pendency of the same cause in another court?

A. Yes, because this action was commenced in a State A state court, so the federal court must apply State A law.
B. Yes, because this action is in a federal court in State A on the basis of the court’s diversity of citizenship jurisdiction, so the federal court must apply State A law.
C. No, because this issue is unlikely to affect the outcome of the action or to create forum-shopping, so the federal court should apply federal law, under which the defendant has not waived this defense.
D. No, because this issue is governed by the FRCP, under which the defendant has not waived this defense.

Answer 12

D. No, because this issue is governed by the FRCP, under which the defendant has not waived this defense.

Question 13

A bar prep company discovered that its copyrighted content was being used in an online simulated exam that its competitor was administering in a few days. The company filed a petition for an ex parte order to direct the competitor to immediately remove that content from its website. The company submitted an affidavit specifying why immediate and irreparable injury will result if the exam is administered, and offered to provide security for any costs or damages incurred by the competitor if it was determined that the order was wrongfully issued.

Should the court issue the order?

A. Yes, because the company submitted an affidavit with specific facts showing immediate and irreparable injury.
B. Yes, because the competitor will receive notice of the order once it is issued by the court.
C. No, because a court cannot issue and injunction unless the adverse party has notice of the hearing.
D. No, because the company has not provided sufficient certification for obtaining an ex parte order.

Answer 13

D. No, because the company has not provided sufficient certification for obtaining an ex parte order.

Question 14

Three drivers were in a traffic accident in State A. The three drivers were citizens of State A, State B, and State C, respectively. Only the driver from State C sustained any injuries and damage. The driver from State C filed a tort action against the State A driver, seeking $100,000 in damages. The State A driver believes that he was not at fault in any way and that the driver from State B was the sole cause of the accident. Assume State A does not recognize any claim of contribution among joint tortfeasors.

May the State A driver assert a third-party claim against the State B driver in the pending action, alleging that the State B driver was the party at fault and should pay for the State C driver’s injuries?

A. Yes, because third-party claims are permitted as long as they arise from the same transaction or occurrence as the original action.
B. Yes, because the State A driver’s third-party claim is derivative of the State C driver’s original claim.
C. Yes, provided the State A driver obtains leave of court.
D. No, the State A driver may not maintain the third party claim.

Answer 14

D. No, the state A driver may not maintain the third party claim.

Question 15

The plaintiff in a negligence case was injured in a car accident with the defendant. The plaintiff’s attorney retained a physician to examine the plaintiff and to testify regarding the plaintiff’s injuries. After the physician examined the plaintiff, the plaintiff’s attorney discussed the physician’s findings with the physician. The plaintiff’s attorney and the physician also discussed what the physician should include in the expert witness report that will be provided to the defendant. The defendant then conducted a deposition of the physician. During the deposition, the defendant’s attorney asked the physician to describe what was said in his conversations with the plaintiff’s attorney. The plaintiff’s attorney objected to those questions.

Are the defendant’s questions regarding the plaintiff’s attorney’s discussions with the physician properly subject to discovery?

A. No, because the communications between the plaintiff’s attorney and the physician are protected from discovery under work product doctrine.
B. No, because the communications between the plaintiff’s attorney and the physician are protected by the attorney-client privilege.
C. Yes, because the attorney does not represent the physician and therefore the communications between the plaintiff’s attorney and the physician are not privileged.
D. Yes, because the communications between the plaintiff’s attorney and the physician are relevant to determine the basis for opinions and statements in the physician’s expert report.

Answer 15

A. No, because the communications between the P’s attorney and the physician are protected from discovery under work product doctrine.

Question 16

A former shareholder of a corporation filed an action against the corporation’s board of directors, alleging that the directors’ wrongful actions diminished the value of the corporation and its stock. The former shareholder served a request for production of documents that included a request for any documents relating to the value of the corporation. The corporation produced a number of documents, but withheld certain documents that were written by its attorneys, claiming that the documents were protected from discovery under the attorney-client privilege. Without contacting or conferring with the corporation or its lawyer, the former shareholder filed a motion to compel production of the withheld documents, claiming that they were not covered by the privilege. The court ruled that the documents were not privileged and had to be produced.

What will be the likely result if the former shareholder seeks to recover costs or attorneys’ fees related to the motion or to have sanctions imposed on the corporation?

A. The shareholder may not recover costs or attorneys’ fees or have sanctions imposed.
B. The shareholder may recover the costs of asserting the motion to compel but may not recover any attorneys’ fees or have sanctions imposed.
C. The shareholder may recover the costs and attorneys’ fees incurred in asserting the motion to compel, but may not have sanctions imposed.
D. The shareholder may recover costs and attorneys’ fees incurred in asserting the motion to compel, and may have sanctions imposed.

Answer 16

A. The shareholder may not recover costs or attorneys’ fees or have sanctions imposed.

Question 17

A plaintiff filed a single cause of action against a defendant on a claim based on products liability in state court. The plaintiff contends that a space heater that he was using during the winter short-circuited, causing a fire that burned down his house. In July, the plaintiff’s case against the defendant went to trial, and the jury determined that the fire was caused by faulty wiring in the plaintiff’s home.

The following September, the plaintiff filed a breach of warranty action against the defendant in federal court, properly invoking the court’s diversity jurisdiction. The defendant, after properly being served with process, files an answer with an affirmative defense of claim preclusion as his first pleading or motion. The defendant, at an appropriate time, then files a motion for summary judgment based on the assertion of claim preclusion.

How should the court rule on the defendant’s motion?

A. Deny the motion, because the application of claim preclusion is a factual issue for the jury to determine.
B. Deny the motion, because the plaintiff’s breach of warranty theory is not the same cause of action as the plaintiff’s products liability claim.
C. Grant the motion, because claim preclusion applies to bar the claim.
D. Grant the motion, because the defendant, by raising the issue in his first pleading or motion, did not waive the defense of claim preclusion.

Answer 17

C. Grant the motion, because claim preclusion applies to bar the claim.

Claim is barred because products liability claim and breach of warranty both arise out of the same transaction or occurrence.

Question 18

A woman sued her ex-husband for installments due under their divorce property settlement agreement. The ex-husband defended the suit on the ground that the ex-wife was in breach of the agreement. However, the court granted judgment for the ex-wife. Now, the ex-wife is suing her ex-husband for other installments due under the agreement. The ex-husband raises the defense that the agreement was void and illegal because of fraud perpetrated by his ex-wife at the time the agreement was signed. The ex-wife moves to strike her ex-husband’s defense, claiming issue preclusion.

Should the court grant the motion?

A. No, because the issue was never litigated
B. No, because judgment on one installment contract does not bar subsequent actions on other installments.
C. Yes, because the husband should have raised the defense in the first action.
D. Yes, because the issue of fraud is never waived.

Answer 18

A. No, because the issue was never litigated

Fraud issue was never actually litigated

Question 19

A pedestrian was injured in an auto accident caused by a driver. The pedestrian’s injuries included a broken nose and a broken toe. Not sure of the strength of her case, she sued the driver only for the injuries to her nose. She was awarded $15,000 in damages. Encouraged by this success, she now wishes to sue the driver for the injuries to her toe.

May she sue the driver again?

A. No, because all related claims “merged” with the final decision in the first case.
B. No, because she will be collaterally estopped from pursuing the claim.
C. Yes, and she may use the prior decision against the driver.
D. Yes, but she will have to relitigate the driver’s liability.

Answer 19

A. No, because all related claims “merged” with the final decision in the first case.

Question 20

A resident of City A (located in the Northern District of State A) brought a diversity action against a resident of City B (located in the Eastern District of State B). The cause of action arose in City B. The defendant commutes daily from his home in City B to his office in City A and would find it much more convenient to litigate the action there than in City C, where the appropriate court for the Eastern District of State B is located. The plaintiff would also find it more convenient to litigate in City A, but will go to City C if necessary.

May the action be litigated in City A?

A. No, because venue is not proper there.
B. No, if process is served in State A.
C. Yes, because a plaintiff is entitled to choose venue.
D. Yes, if the defendant waives proper venue.

Question 21

A state’s civil procedure rules allow for “nail and mail” service (posting the summons at the defendant’s dwelling and thereafter mailing him a copy by certified mail) when “regular” service (service by physical delivery or by leaving a copy of the complaint with someone of suitable age and discretion at the defendant’s usual place of abode) cannot be accomplished with due diligence. A plaintiff brought suit against a defendant in the federal district court for that state. After the plaintiff’s special process server made many attempts at serving the defendant, the plaintiff’s attorney directed the process server to nail the complaint and summons to the defendant’s front door, and the attorney mailed (by certified mail) a copy to the defendant in accordance with the state rule.

Has the defendant been properly served?

A. Yes, if nail and mail service is reasonably calculated to give the defendant notice of the action.
B. Yes, because under the Erie doctrine the federal court must apply the state’s service of process rules
C. No, if the defendant only rented the dwelling at which service was posted
D. No, because nail and mail service is not authorized by the FRCP

Answer 21

A. Yes, if nail and mail service is reasonably calculated to give the defendant notice of the action.

Question 22

A property owner sued a developer in federal court alleging breach of an oral contract. According to the property owner, only one other person of questionable credibility heard the conversation in which the contract was allegedly made. That person was listed in the pretrial conference order. The next day, five days before the scheduled trial, the property owner’s attorney discovered that a disinterested person also heard the conversation, and he wanted to call this witness at trial as well. He immediately notified the developer of the witness and his change in plans.

May the property owner call the additional witness?

A. Yes, if the court modifies the pretrial order.
B. Yes, because the trial has not yet begun.
C. No, because the final pretrial order controls the subsequent course of the trial.
D. No, if the jury has already been selected.

Answer 22

A. Yes, if the court modifies the pretrial order.

Question 23

A contractor filed a breach of contract action against a supplier in federal district court, seeking compensatory damages. The contractor does not seek, and under applicable law cannot recover, punitive damages. The supplier admits the existence of the contract but denies breach. The contractor served on the supplier an interrogatory asking the supplier to state his net worth.

Assuming the supplier objects to the interrogatory and the contractor files a motion to compel an answer, will the court require the supplier to answer?

A. Yes, because the requested information is relevant.
B. No, unless the contractor seeks the information to determine whether the supplier has sufficient assets to make the action worthwhile.
C. No, because the request seeks privileged information.
D. No, because the requested information is not relevant to the claim or defense of any party.

Answer 23

D. No, because the requested information is not relevant to the claim or defense of any party.

Question 24

A plaintiff filed a civil action based on negligence against a defendant in federal district court, alleging that the defendant negligently ran a red light at an intersection and collided with the plaintiff’s vehicle, causing the plaintiff’s injuries.

A week after the close of discovery, the plaintiff filed a motion for summary judgment on the issue of whether the defendant was negligent. With the motion, the plaintiff filed (i) his own sworn affidavit, which stated that the traffic signal was green as he entered the intersection; (ii) an affidavit of a witness who was driving the car behind him, which stated that the witness saw the entire incident and that the plaintiff’s traffic signal was green as he approached and entered the intersection; and (iii) an affidavit of another witness, which stated that she saw the entire incident and that the defendant’s signal had been red for several seconds before the defendant entered the intersection and was still red when the defendant entered the intersection.

In response to the motion, the defendant filed his own affidavit which stated that he does not recall seeing the traffic signal before entering the intersection, but believes that it was not red. He also filed the affidavit of a pedestrian on the scene. The pedestrian stated that she did not see the traffic signal prior to the accident, but that another passerby told her that the traffic signal was yellow for both drivers.

How should the court rule on the plaintiff’s motion?

A. Grant the motion, because the P has supported his motion with substantial evidence and the defendant has failed to produce admissible evidence that contradicts the P’s evidence.
B. Grant the motion, because the defendant’s conduct is still negligent even if the defendant’s traffic signal was yellow.
C. Deny the motion, because the defendant has presented evidence that contradicts the evidence presented by the plaintiff.
D. Deny the motion, because a party may not obtain summary judgment on an issue on which that party has the burden of proof.

Answer 24

A. Grant the motion, because the P has supported his motion with substantial evidence and the defendant has failed to produce admissible evidence that contradicts the P’s evidence.

Question 25

A man and a woman were in a two-car traffic accident. Immediately after the accident, the man was treated by a physician at a nearby hospital’s emergency room. The man later filed a negligence action against the woman in federal district court, seeking compensatory damages. The woman now seeks discovery regarding the emergency room physician’s observations, opinions, and treatment of the man.

Is the woman entitled to discovery regarding that information?

A. No, because such discovery is not relevant to the claim or defense of a party.
B. No, because the woman is not entitled to obtain discovery from persons who are not parties to the action.
C. Yes as to the physician’s observation and treatment, but the physician’s opinions are discoverable only if the man intends to call the physician as an expert witness at trial.
D. Yes, because the physician observed and treated the man and developed opinions about the man’s injuries for purposes other than litigation or trial.

Answer 25

D. Yes, because the physician observed and treated the man and developed opinions about the man’s injuries for purposes other than litigation or trial.

Question 25

A plaintiff filed a negligence action against a defendant in federal district court after a two-car accident. The plaintiff’s attorney created a list of everyone he could identify who observed the accident or otherwise had information relevant to the accident. The list includes one eyewitness whom the plaintiff’s attorney was able to identify only through the expenditure of several thousand dollars in investigation costs. The defendant served the following interrogatory on the plaintiff: “Please state the name of each person of whom you are aware who may know or have information relevant to this action.”

Must the plaintiff provide the defendant with the names of all of the people on the plaintiff’s attorney’s list?

A. No, because the names on the list are protected from discovery under the work product doctrine.
B. No as to the name of the eyewitness found through the plaintiff’s investigation efforts, but yes as to the other names on the list.
C. Yes, because while the names are subject to qualified immunity from discovery under work product doctrine, the defendant will be able to show sufficient need to obtain a court order requiring the names’ dislcosure.
D. Yes, because the names are relevant to claims and defenses of the parties, and they do not constitute work product.

Answer 25

D. Yes, because the names are relevant to claims and defenses of the parties, and they do not constitute work product.

Question 25

A plaintiff’s attorney is taking the deposition of a witness. Although within the scope of the discovery plan submitted by the parties’ attorneys to the court, the witness’s attorney objected to some of the questions on the grounds that they are unduly invasive and improper. The plaintiff’s attorney insisted that the witness must answer the questions.

What should the witness’s attorney do next?

A. Instruct the client not to answer the questions and move for a protective order in the court in the district where the deposition will be taken.
B. Request the defendant’s attorney to object to the questions and modify the discovery plan.
C. Direct the witness to answer the deposition questions because they are within the scope of the discovery plan.
D. Direct the witness to answer the deposition questions because the plaintiff’s attorney can move for an order compelling discovery.

Answer 25

A. Instruct the client not to answer the questions and move for a protective order in the court in the district where the deposition will be taken.

Question 26

A wholesaler sued a retailer in a federal court in State A. The retailer timely filed and served a motion to dismiss for lack of subject matter jurisdiction. The court denied this motion.

Thereafter, the retailer filed and served his answer. Ten days after serving his answer, the retailer filed an amended answer, raising, for the first time, the defense of lack of personal jurisdiction, which was available when the motion mentioned above was filed.

Should the court consider the personal jurisdiction objection?

A. No, because that defense has been waived.
B. No, because objections to personal jurisdiction may only be made by motion to dismiss before filing an answer.
C. Yes, because the retailer may serve an amended answer within 21 days after serving his original answer.
D. Yes, because the amendment relates back to the original answer, thus preserving his right to raise an objection.

Answer 26

A. No, because that defense has been waived.

Question 27

A truck collided with a car in State A, injuring the driver of the car. The driver of the car filed a civil action in federal district court in State A against the trucking company to recover damages for the driver’s injuries. The trucking company filed a motion to dismiss the action against it on the grounds that the court in State A did not have personal jurisdiction over it. Although the driver of the truck was the company’s employee, the trucking company argued that the driver did not have authorization to drive a truck to State A. Following a hearing, however, the court ruled that the trucking company was subject to the court’s personal jurisdiction.

Another two months passed, and the trucking company did not file an answer. The driver of the car then filed a motion asking that the clerk of court make an entry of default, and the clerk did so.

What procedure must the driver follow to obtain a default judgement against the trucking company?

A. File a motion to have the clerk of court enter the default judgment, which the clerk may do without the trucking company receiving any further notice of the motion.
B. File a motion to have the clerk of court enter the default judgment, which the clerk may do as long as the trucking company receives additional notice of the motion for default judgment.
C. File a motion to have the judge enter the default judgment, which the judge may do without the trucking company receiving any further notice of the motion for default judgment.
D. File a motion to have the judge enter the default judgment, which the judge may do as long as the the trucking company receives additional notice of the motion for default judgment.

Answer 27

D. File a motion to have the judge enter the default judgment, which the judge may do as long as the the trucking company receives additional notice of the motion for default judgment.

Question 28

A driver, domiciled in State B, struck a car driven by a father domiciled in State A and his young daughter, who was living with her mother in State B. The father commenced an action in federal court against the driver in his own right and on behalf of his daughter, seeking $80,000 for his injuries, which were severe, and $5,000 for his daughter’s injuries, which were minor.

Does the court have subject matter jurisdiction of the claim for the daughter’s injuries?

A. Yes, because the claims brought by the father in his own right and on his behalf of his daughter may be aggregated.
B. Yes, because the two claims are so related that they form part of the same case or controversy.
C. No, because the daughter seeks damages of only $5,000.
D. No, because the daughter is a citizen of State B.

Answer 28

D. No, because the daughter is a citizen of State B.

Question 29

A resident of the District of State A properly brought a diversity action in federal court against a resident of the District of State B and a resident of the District of State C for a cause of action that arose from events that occurred in the District of State D.

In which judicial districts is venue proper?

A. Only in the District of State B and in the District of State C.
B. Only in the District of State D.
C. Only in the District of State A.
D. In the district of State B, the District of State C, and the District of State D.

Answer 29

B. Only in the District of State D.

Question 30

A tourist from State A was severely injured in a bar fight in State B. The tourist filed a battery action against one of the bar’s patrons, seeking $100,000 for his injuries. The defendant patron claims that the tourist is mistaken about who hit him. The patron says that he did not touch the tourist. The patron claims that it was the bar’s bouncer-who looks like the patron-who hit the tourist and then continued to pummel him. The bouncer claims that he never touched or harmed the tourist.

Can the patron assert a third-party claim against the bouncer to bring him into the action?

A. No, because the patron has no legal basis to assert a claim against the bouncer and is not seeking to recover from the bouncer any portion of the patron’s liability to the tourist.
B. No, because the plaintiff is the master of his legal action, and defendants may not bring in new parties against whom the plaintiff has not asserted a claim.
C. Yes, because the patron is claiming that the bouncer is liable for the injuries for which the plaintiff is suing the patron.
D. Yes, because the patron’s claims arise from the same transaction or occurence as the plaintiff’s original claims.

Answer 30

A. No, because the patron has no legal basis to assert a claim against the bouncer and is not seeking to recover from the bouncer any portion of the patron’s liability to the tourist.

Question 31

An employee filed an employment discrimination action against her employer in federal district court. The employee alleges that she has not been promoted because of her gender. She intends to call a co-worker as a witness at trial. The co-worker will testify that a senior manager of the employer told the co-worker that the employee would not be promoted because the employer deemed women to be poor managers.

Is the identity of the co-worker subject to discovery by the employer?

A. Yes, the employee must disclose the identity of the co-worker, but only if the employer asks for information in appropriate discovery requests.
B. Yes, the employee must disclose the identity of the co-worker, but only as pretrial disclosure 30 days before trial.
C. Yes, the employee must disclose the identity of the co-worker even without any request from the employer.
D. No, the co-worker’s identity and her testimony consist of trial preparation materials and are subject to qualified immunity from discovery.

Answer 31

C. Yes, the employee must disclose the identity of the co-worker even without any request from the employer.

Question 31

A motorist from State A struck and injured a pedestrian in State B. The pedestrian, a State B resident, brought an action in a State B federal court against the State A motorist, seeking $100,000 in damages. The summons and complaint were served on a receptionist at the motorist’s place of business in State A. State A’s rules permit service of process in this manner, while State B’s rules do not.

If the motorist moves to dismiss the complaint on the basis of improper service of process, is the court likely to dismiss the action?

A. Yes, because, under choice of law rules, the court will apply the law that a state court in State B would apply.
B. Yes, because the federal rules do not permit service on an individual by delivering process to a third party found at the defendant’s place of employment.
C. No, because the federal rules permit service under the rules of the state in which service will be effected.
D. No, because the federal rules permit service on a person of suitable age and discretion at the defednant’s place of employment.

Answer 31

C. No, because the federal rules permit service under the rules of the state in which service will be effected.

Question 32

A seller sold his house to a buyer. Termite problems subsequently necessitated $95,000 worth of repairs to the house. The buyer filed an action based on fraud against the seller in federal district court. The buyer alleges that the seller told him prior to the sale that the house had no termites. The buyer further alleges that the seller knew at the time he made that statement that the house did in fact have a termite problem. The seller denies any knowledge of a termite problem prior to the sale. In a deposition of the seller’s real estate agent, the buyer’s attorney asks the real estate agent if she (the agent) ever heard the seller mention a termite problem prior to the sale.

Is this question within the scope of discovery?

A. No, because it seeks hearsay information that is not admissible at trial.
B. No, because it seeks privileged information.
C. Yes, because it falls within an exception to the hearsay rule.
D. Yes, because it seeks relevant information.

Answer 32

D. Yes, because it seeks relevant information.

Question 33

A car owner sued a crane operator for negligence in a federal court because the crane operator backed over and crushed her car. During jury selection, the car owner’s lawyer wished to exercise one of her peremptory challenges to excuse some potential jurors.

Which of the following reasons would provide the best grounds for the crane operator’s lawyer to object to the peremptory challenge?

A. Excusing the only potential male juror because he is a crane operator, just like the defendant.
B. Excusing a second African-American juror.
C. Excusing the juror with multiple tattoos.
D. Excusing the juror who has been unemployed for two years.

Answer 33

B. Excusing a second African-American juror.

Question 34

A plaintiff sued a trucking company for negligence in federal court, alleging that its employee, a driver for the company, was acting within the scope of his employment when driving the truck that hit her. The company’s first response to the complaint was to file a motion for summary judgment, together with an affidavit, alleging that the driver was not acting within the scope of his employment when the driver hit her, because the accident happened in State A and the driver was only authorized to be in State B at the time. Under applicable law, the company would not be liable if the driver was not acting within the scope of his employment. The plaintiff responded with a competing affidavit from an eyewitness who saw the driver texting immediately before the crash.

How should the court rule on the company’s motion?

A. Deny the motion, because summary judgment is premature at this point.
B. Deny the motion, because, although the motion is timely, there is a dispute of material fact such that summary judgement is inappropriate.
C. Deny the motion, because the company is a self-interested party, such that the affidavit is not credible.
D. Grant the motion, because there is no dispute as to a material fact.

Answer 34

D. Grant the motion, because there is no dispute as to a material fact.

Question 34

A group of employees brought a class action lawsuit in federal court against their employer, alleging employment discrimination and the violation of several labor laws. The court granted certification of the class action. Wanting to force each employee to litigate individually, the employer immediately files an appeal.

Can the court of appeals hear this appeal?

A. Yes, because all trial court orders are reviewable on appeal.
B. Yes, because an order granting certification of a class action is immediately appealable.
C. No, because only final orders are reviewable on appeal.
D. No, because the employees’ legal claims are still outstanding.

Answer 34

B. Yes, because an order granting certification of a class action is immediately appealable.

Question 34

A plaintiff sued a trucking company for negligence in federal court, alleging that its employee, a driver for the company, was acting within the scope of his employment when driving the truck that hit her. The company’s first response to the complaint was to file a motion for summary judgment, together with an affidavit, alleging that the driver was not acting within the scope of his employment when the driver hit her, because the accident happened in State A and the driver was only authorized to be in State B at the time. Under applicable law, the company would not be liable if the driver was not acting within the scope of his employment. The plaintiff responded with a competing affidavit from an eyewitness who saw the driver texting immediately before the crash.

How should the court rule on the company’s motion?

A. Deny the motion, because summary judgment is premature at this point.
B. Deny the motion, because, although the motion is timely, there is a dispute of material fact such that summary judgement is inappropriate.
C. Deny the motion, because the company is a self-interested party, such that the affidavit is not credible.
D. Grant the motion, because there is no dispute as to a material fact.

Question 35

At a federal trial for breach of contract, the plaintiff presented evidence of both contractual and consequential damages amounting to $115,000. The jury, however, awarded the plaintiff $250,000 in damages. The defendant filed a motion for a new trial, arguing that the damage award was clearly excessive.

If the court agrees that the award is excessive, the court may:

A. Deny the motion for a new trial but lower the damage award and require the plaintiff to accept the remittur.
B. Deny the motion for a new trial contingent on the plaintiff accepting a remittur.
C. Grant the motion for a new trial only because the jury award may not be changed.
D. Grant the motion for a new trial only because remittur is not allowed in federal court.

Answer 35

B. Deny the motion for a new trial contingent on the plaintiff accepting a remittur.

Question 36

A car driver properly sued a truck driver for negligence in federal court for crashing into the driver’s car at an intersection. The truck driver had been issued a speeding ticket at the accident scene, after which he had mailed in the citation admitting he was speeding, paid the fine of $100, and never went to court.

At trial, the car driver wants to use the speeding citation as an admission of responsibility for speeding, so as to preclude the truck driver from relitigating whether he was speeding at the time of the accident.

Is the court likely to preclude the truck driver from relitigating the issue?

A. Yes, because he admitted to speeding when he paid the citation.
B. Yes, because he had the opportunity to go to court and litigate the issue and chose not to.
C. No, because he did not litigate the issue when he paid the citation.
D. No, because it is not relevant to the car driver’s case.

Answer 36

C. No, because he did not litigate the issue when he paid the citation.

Question 37

A landlord brought suit against a tenant in federal court for overdue rent payments on a commercial lease. The landlord sought to recover on the six rent installments that were past due and unpaid at the time of the suit. The landlord won the case, and judgment was entered in her favor. The lease has an acceleration clause that states that all future rent payments become due if the tenant falls behind three months or more. The landlord now files suit against the tenant for the remaining rent payments. The tenant moves to dismiss, asserting that the landlord’s claim is barred by claim preclusion (res judicata) principles.

Should the tenant’s motion to dismiss be granted?

A. No, because a LL may choose when to sue on an acceleration clause.
B. No, because the two suits do not involve the same cause of action.
C. Yes, because a LL may not sue on later installments of an installment K.
D. Yes, because the two suits arose from the same transaction or occurence.

Answer 37

D. Yes, because the two suits arose from the same transaction or occurence.

Question 38

A pedestrian from State A filed a civil tort action against a driver from State B in a State A state court, alleging that the driver struck the pedestrian when the pedestrian was crossing the road in State A. The pedestrian alleges damages of $100,000 in accordance with state procedure. State A and State B each have one federal court.

Which of the following best explains the procedure the driver should follow to remove the case to federal court?

A. The driver should file a motion to transfer venue in the state court where the action was filed.
B. The driver should file a motion to transfer venue in the federal court for State A.
C. The driver should file a notice of removal in the state court where the action was filed, and then serve a copy on the driver.
D. The driver should file a notice of removal in the federal court for State A, and serve a copy of notice on the pedestrian, and file a copy with the state court where the action was filed.

Answer 38

D. The driver should file a notice of removal in the federal court for State A, and serve a copy of notice on the pedestrian, and file a copy with the state court where the action was filed.

Question 39

The plaintiff was severely injured when a tire on her car blew out and caused her to lose control of the car. She filed an action in federal district court against the manufacturer of the tire, alleging that the tire was defective. The plaintiff intends to introduce remnants of the tire into evidence at trial as part of her proof that the tire was defective.

In what way are the remnants subject to discovery?

A. Discovery is not available for such physical items, only for documents and electronically stored information.
B. The plaintiff does not have to dislocse the existence or description of the tire remnants unless the manufacturer asks about them.
C. Even without a request from the manufacturer, the plainitff must provide the manufacturer with a description of the tire remnants.
D. The court will order the plaintiff to make the tire remnants available for the manufacturer to inspect only if the manufacturer shows good cause.

Answer 39

C. Even without a request from the manufacturer, the plainitff must provide the manufacturer with a description of the tire remnants.

Question 40

An elderly woman filed a complaint in federal district court, alleging that a salesperson “made fraudulent statements that induced the plaintiff to sign the contract to the plaintiff’s detriment.” The salesperson then filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted.

How should the court rule?

A. Deny the motion, because the complaint stated a possible claim for relief.
B. Deny the motin, because the complaint stated a plausible claim for relief.
C. Grant the motion, because the complaint did not state the claim for relief with particularity.
D. Grant the motion, because the complaint did not state the claim for relief with probability.

Answer 40

D. Grant the motion, because the complaint did not state the claim for relief with probability.

Question 41

A storeowner properly filed a complaint for breach of contract against a food distributor in federal district court. After the food distributor timely answered the complaint, the parties proceeded through discovery, which lasted over 14 months and cost the parties over $200,000 in attorneys’ fees and related costs. At the final pretrial conference, the presiding judge indicated that he did not think much of the merits of the storeowner’s claims. As a result, the storeowner wants to dismiss this case and refile in a different federal court to get a more sympathetic judge.

How may the storeowner try to achieve this goal?

A. File a motion for voluntary dismissal without prejudice, and it will likely be granted on the grounds that the judge is biased against the storeowner’s caase.
B. File a motion for voluntary dismissal without prejudice, but it will likely be denued to the time and money already invesed in the case by the parties and the court.
C. File a notice of dismissal with the federal district court, and it will likley be granted because the FRCP give a plaintiff the right to unilatreally dismiss an action once without prejudice.
D. File a motion for volunary dismissal without prejudice, and it will likely be granted because courts are required to freely grant such motions to further judicial economy.

Answer 41

B. File a motion for voluntary dismissal without prejudice, but it will likely be denued to the time and money already invesed in the case by the parties and the court.

Question 42

A husband and wife were traveling in a car with the wife driving when they were in an accident with a truck. The accident occurred in a jurisdiction that followed the traditional rule as to joint and several liability among tortfeasors. The husband sued the truck driver in federal district court. The truck driver, contending that the wife was an indispensable party, filed a motion to dismiss the action because the husband did not join his wife as a party to the action.

How should the court rule on the truck driver’s motion?

A. Grant the motion, because the wife is an indispensable party.
B. Deny the motion and order service of process on the wife to make her a party, provided that she is subject to the court’s personal jurisdiction.
C. Deny the motion because the wife and the truck driver cannot be joined as co-defendants in the action.
D. Deny the motion, because the wife is not “needed for just ajudication.”

Answer 42

D. Deny the motion, because the wife is not “needed for just ajudication.”