Civil Procedure Capstone Questions

Question 1

An employee filed in state court a civil action alleging sexual harassment in the workplace. She asserted federal statutory employment discrimination claims against her employer, and she asserted a state law battery claim against the co-worker who allegedly engaged in the sexual harassment. The plaintiff employee, the defendant employer, and the defendant co-worker are all citizens of the state in which the action was filed.

May the defendants properly remove the action to federal district court?

A No, because the federal district court does not have subject matter jurisdiction over the action.No, because the federal district court does not have subject matter jurisdiction over the action.

B No, because the defendants are citizens of the state in whose court the action is pending.No, because the defendants are citizens of the state in whose court the action is pending.

C Yes, the action may be properly removed to federal district court, provided the amount in controversy exceeds $75,000.Yes, the action may be properly removed to federal district court, provided the amount in controversy exceeds $75,000.

D Yes, the action may be p

Answer 1

D

The action may be properly removed regardless of the amount in controversy. A defendant may remove an action that could have originally been brought in the federal courts. Federal question jurisdiction is available when the plaintiff, in her well-pleaded complaint, alleges a claim that arises under federal law. In the instant case, the plaintiff is bringing a federal statutory employment discrimination claim. This presents a federal question, and removal is authorized on this basis. Once one claim satisfies the requirements for original federal subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. The battery claim arises out of the same transaction or occurrence as the employment discrimination claim. Thus, the court has supplemental jurisdiction over that claim, making (D) correct and (A) incorrect. (B) is incorrect because removal would be based on federal question jurisdiction, and the restriction on an in-state defendant removing a case to federal court applies only when removal is based on diversity of citizenship jurisdiction. Similarly, federal question jurisdiction, unlike diversity of citizenship jurisdiction, does not have an amount in controversy requirement, making (C) incorrect.

Question 2

A citizen of State A and a citizen of State B were in an automobile accident in State A. The State A citizen filed a negligence action against the State B citizen in a State A state court, seeking $500,000 in damages.

May the State B citizen have the case removed to federal district court?

A No, the case is not within the federal courts’ subject matter jurisdiction.No, the case is not within the federal courts’ subject matter jurisdiction.

B No, because, while diversity of citizenship jurisdiction exists, the action cannot be removed from a State A state court because it arises from events that occurred in State A.No, because, while diversity of citizenship jurisdiction exists, the action cannot be removed from a State A state court because it arises from events that occurred in State A.

C Yes, because the action originally could have been brought in federal district court.Yes, because the action originally could have been brought in federal district court.

D Yes, subject to the federal court’s discretion to grant or deny the motion for removal.Yes, subject to the federal court’s discretion to grant or deny the motion for removal.

Answer 2

C

The case may be removed to federal district court. Under 28 U.S.C. section 1441, a defendant may remove an action that could have originally been brought in the federal courts. (In other words, subject matter jurisdiction based on either a federal question being presented or on diversity of citizenship would have been present had the case been filed in federal court.) Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff must be a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. Here, the plaintiff is from State A and the defendant is from State B. The plaintiff’s claim is for $500,000, satisfying the amount in controversy requirement. Thus, there is diversity of citizenship jurisdiction over this claim. Because there is diversity of citizenship jurisdiction, the case is removable to federal court, making (C) correct and (A) incorrect. (B) is incorrect because there is no such restriction on removal. A case may be removed to federal court even though the case arose within the state. (D) is incorrect because the federal judge does not have the discretion to decline removal.

Question 3

A consumer filed a breach of contract action against a seller in a state court in State A, seeking $100,000 in damages. The consumer was a citizen of State A. The seller was a State B corporation whose principal place of business was in State A. Five days after being served with the complaint and summons, the seller removed the action to federal district court. Seven months later, the consumer filed a motion to remand the action back to state court.

How should the federal court rule on the motion to remand the action to state court?

A Deny the motion, because it was untimely.Deny the motion, because it was untimely.

B Deny the motion, because the federal court has subject matter jurisdiction over the action based on its diversity of citizenship jurisdiction.Deny the motion, because the federal court has subject matter jurisdiction over the action based on its diversity of citizenship jurisdiction.

C Grant the motion, because the federal court lacks subject matter jurisdiction.Grant the motion, because the federal court lacks subject matter jurisdiction.

D The federal court has discretion to either hear the action or remand it to state court.

Answer 3

C

The court should grant the motion. A defendant may remove an action that could have originally been brought in the federal courts. Diversity jurisdiction requires complete diversity-meaning that each plaintiff must be a citizen of a different state from every defendant-and the amount in controversy must exceed $75,000. The citizenship of an individual is his permanent home, and a corporation is a citizen of every state in which it was incorporated and the one state in which it has its principal place of business. Here, the consumer was a citizen of State A, and the corporation was a citizen of State B (its state of incorporation) and of State A (in which it had its principal place of business). Thus, the case is not removable because complete diversity does not exist, and, as a result, there is no subject matter jurisdiction based on diversity of citizenship. Nonetheless, the case here was removed to federal court. If the plaintiff bases the motion to remand on a defect other than subject matter jurisdiction (i.e., a defect in the removal procedure), the motion to remand must be brought within 30 days of removal. There is no such time limit for a lack of subject matter jurisdiction. The court must remand whenever it is shown that there is no subject matter jurisdiction. Here, since the motion to remand is based on a lack of subject matter jurisdiction, as explained above, the fact that seven months has passed since removal is largely irrelevant. As a result, (C) is correct and (A) is incorrect. (B) is incorrect because diversity of citizenship jurisdiction does not exist, as explained above. (D) is incorrect because the court is without discretion to keep the case once it is shown that there is no subject matter jurisdiction. (This is to be distinguished from the fact that the federal court has discretion to remand a case to state court once all federal claims have been resolved over which there is no diversity jurisdiction (and over which the court had supplemental jurisdiction). Here, there was no claim within the court’s subject matter jurisdiction.)

Question 4

A delivery truck driver, a citizen of State A, and a convertible driver, a citizen of State B, were involved in a crash in State A that was the delivery truck driver’s fault. The convertible was damaged, and the driver also claimed that he suffered from whiplash. The convertible driver sued the truck driver in a federal court in State A, claiming $100,000 for damage to his convertible and $100,000 for whiplash. However, the jury awarded the convertible driver only $50,000 for damage to his convertible and $25,000 for his whiplash.

If the truck driver challenges the verdict because the court lacked subject matter jurisdiction, will the verdict stand?

A Yes, because the amount of the award was still $75,000.Yes, because the amount of the award was still $75,000.

B Yes, because jurisdiction is not defeated by the lesser award.Yes, because jurisdiction is not defeated by the lesser award.

C No, because the amount of the award was only $75,000.No, because the amount of the award was only $75,000.

D No, because the court was required to dismiss the action the moment it lacked jurisdiction.

Answer 4

B

The verdict will stand. Even though the jury did not award the plaintiff more than $75,000, diversity jurisdiction is not retroactively defeated by that fact. (A), (C), and (D) are incorrect for this reason. (A) is also incorrect in that the answer implies that the jurisdictional amount for diversity is $75,000. It is not. Rather, the amount must be more than $75,000; i.e., at least $75,000.01.

Question 5

A restaurant owner in State A bought two large freezers from a manufacturer of commercial refrigeration equipment with its principal place of business in State B. Within one week and after being fully stocked with meat, one of the freezers broke down. The restaurant owner filed a state-based products liability action against the manufacturer in federal court in State A, and included a demand for a jury trial. Under the law in State A, jury verdicts do not need to be unanimous, but the Federal Rules of Civil Procedure require jury verdicts to be unanimous.

At trial, the restaurant owner makes a motion asking the court to apply the State A law.

How should the court rule on the motion?

A Grant the motion, because applying the federal rule may change the outcome of the case.Grant the motion, because applying the federal rule may change the outcome of the case.

B Grant the motion, because, when a federal court has diversity jurisdiction, it is required to apply the substantive law of the state in which it is sitting.Grant the motion, because, when a federal court has diversity jurisdiction, it is required to apply the substantive law of the state in which it is sitting.

C Deny the motion, because the Federal Rules of Civil Procedure apply in federal court as long as they are consistent with the Rules Enabling Act and not unconstitutional.Deny the motion, because the Federal Rules of Civil Procedure apply in federal court as long as they are consistent with the Rules Enabling Act and not unconstitutional.

D Deny the motion, because the Supreme Court’s balancing factors indicate that federal law should apply.

Answer 5

C

The court should deny the motion. Under the Erie doctrine, when a state law-based claim is brought in federal court based on diversity of citizenship, the federal court generally applies the substantive law of the state in which it is sitting. However, where a specific federal statute or the Federal Rules of Civil Procedure are on point, the federal court must apply federal procedural law as long as the federal rule is valid. Under the Rules Enabling Act, a Federal Rule is valid if it deals with “practice or procedure” and does not “abridge, enlarge, or modify” a substantive right. Here, there is a specific federal procedural rule that is on point [Fed. R. Civ. P. 48], which requires jury verdicts to be unanimous, unless the parties agree otherwise. Since there is no evidence of agreement, the federal procedural rule will apply, and the motion should be denied. (A) is wrong because it states the wrong conclusion, and it incorrectly cites the “outcome determination” test. This is the test that may be applied when there is no federal procedure law on point, and it is unclear whether the state matter is substantive or procedural. As stated above, there is a federal procedural rule on point. Therefore, this test does not apply. Similarly, (D) is wrong because it is referring to the balance of interests test, which is another test that may be applied when there is no federal procedural law on point, and it is unclear whether the state matter is substantive or procedural. This test is not applicable here, however, because there is a federal procedural rule on point. (B) is wrong because, although it is a true statement of law that a federal court with diversity jurisdiction is required to apply the substantive law of the state in which it is sitting, the requirements for a jury verdict is a procedural rule, not a substantive rule. Therefore, as set forth above, the federal procedural rule governs.

Question 6

A restaurant franchise properly sued the franchise owner of one of its restaurants in federal court for breach of contract for refusing to display materials for the new marketing campaign it launched. The court scheduled a pretrial conference for the purpose of “pressuring” the parties to settle the case. Both parties were given proper notice of the scheduled hearing, but only the owner of the restaurant and her attorney appeared at the conference. The judge immediately issued an order requiring the restaurant franchise to pay the restaurant owner travel expenses and attorneys’ fees for failing to attend.

Is this a valid order of the court?

A No, because the judge does not have the power to issue such an order.No, because the judge does not have the power to issue such an order.

B No, because the court does not have the discretion to order a pretrial conference solely to pressure parties into settling a case.No, because the court does not have the discretion to order a pretrial conference solely to pressure parties into settling a case.

C Yes, because the Federal Rules of Civil Procedure give the federal court discretion to order a pretrial conference for virtually any matter that is relevant, including settlement.Yes, because the Federal Rules of Civil Procedure give the federal court discretion to order a pretrial conference for virtually any matter that is relevant, including settlement.

D Yes, because a pretrial order binds all parties to the case for the remainder of the case.

Answer 6

C

This order by the court is valid. The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement. Moreover, this conference is to be attended by at least one of the lawyers for each side who will actually be conducting the trial, and by any unrepresented parties. A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference. Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys’ fees) by other parties unless the court finds that circumstances make such an award unjust. Here, the judge does have the power to not only order a pretrial conference to expedite the trial and encourage settlement, but also to sanction the restaurant franchise to pay the restaurant owner’s travel expenses and attorneys’ fees for failing to appear. (A) is wrong because it is a misstatement of the law. The judge does have the power under the rules to order the party who fails to appear to pay the opposing side’s attorneys’ fees. (B) is wrong because it also misstates the law. The Federal Rules permit courts to call pretrial conferences to expedite trial and foster settlement. (D) is wrong because, although it is a correct statement of the law (that pretrial orders bind all parties to the case for the remainder of the case), it does not directly answer the call of the question. The question asks if the order is valid. It does not ask if it is binding on the parties.

Question 7

A State A book dealer sold a number of rare comic books to a State B collector for $90,000. The collector paid $10,000 upon delivery and agreed to pay the balance in eight monthly installments of $10,000 each. Two weeks after the sale, the dealer and the collector were involved in an automobile accident that was unrelated to the comic book transaction. The dealer filed a negligence action against the collector in federal district court to recover $100,000 for injuries incurred in the automobile accident.

If the collector wishes to assert a $90,000 fraud claim against the dealer on the grounds that the comic books were counterfeit, may the collector assert this claim in the pending negligence action?

A The collector must assert the fraud claim against the dealer in a separate action because the two claims do not arise from the same transaction or occurrence.The collector must assert the fraud claim against the dealer in a separate action because the two claims do not arise from the same transaction or occurrence.

B The collector will be foreclosed from asserting the fraud claim unless he asserts it as a counterclaim in the pending negligence action.The collector will be foreclosed from asserting the fraud claim unless he asserts it as a counterclaim in the pending negligence action.

C The collector may assert the fraud claim either as a counterclaim or in a separate lawsuit.The collector may assert the fraud claim either as a counterclaim or in a separate lawsuit.

D The collector may file a motion seeking leave to ass

Answer 7

C

The collector may assert the fraud claim either as a counterclaim or in a separate lawsuit. The collector’s fraud claim is a permissive counterclaim since it does not arise from the same transaction or occurrence as the dealer’s claims. Therefore, the collector may assert it as a counterclaim or bring a separate lawsuit. (A) is incorrect because a defendant may assert a permissive counterclaim, assuming there is subject matter jurisdiction, even though there is no connection between it and the plaintiff’s claim. (B) is incorrect because only compulsory counterclaims must be asserted. (D) is incorrect because a defendant does not have to file a motion and seek the court’s permission to assert a counterclaim.

Question 8

A condo owner, a citizen of State A, hired an electrician, a citizen of State A, and a gas worker, a citizen of State B, to fix the wiring in his condo and install a new gas stove. Unfortunately, the condo burned down while they were working on it. The condo owner sued the gas worker for negligence, seeking $100,000. The gas worker files a motion to dismiss the case for failure to join the electrician, alleging that he contributed to the fire.

How should the court rule?

A Deny the motion and order that the electrician be joined as a permissive co-defendant.Deny the motion and order that the electrician be joined as a permissive co-defendant.

B Deny the motion and order that the electrician be joined as an indispensable party.Deny the motion and order that the electrician be joined as an indispensable party.

C Deny the motion, because the electrician is not a necessary party.Deny the motion, because the electrician is not a necessary party.

D Grant the motion, because the electrician is a necessary party but his joinder would destroy complete diversity.

Answer 8

C

The court should deny the motion. The most typical way in which compulsory joinder is raised is by a Rule 12(b) motion to dismiss for failure to join an indispensable party. To determine if the party is truly indispensable, the first step is to determine whether the absentee should be joined. One reason why an absent party should be joined is when complete relief cannot otherwise be accorded among parties. However, under the tort law in a number of states, any single joint tortfeasor may be liable for the entire wrong, making complete relief for the plaintiff possible. Another reason to join an absent party is if he has an interest in the subject matter of the suit such that, without his presence, his ability to protect his interest will be impaired or the existing parties will be subject to a substantial risk of incurring multiple or inconsistent obligations. Here, the electrician has no interest to protect. Even if the condo owner were to sue the electrician later, the electrician would not be precluded from raising any defenses that the gas worker raised, because the electrician was not a party to the initial case and therefore issue preclusion would not apply to him. Accordingly, the electrician is not a necessary party. (D) is therefore incorrect. It is true that, if the electrician were joined, there would be no diversity, and (D) states the outcome for a case if the electrician were truly an indispensable party; however, as explained above, that is not the case here. (B) is also incorrect in suggesting that if someone fits within the “indispensable party” category, subject matter jurisdiction is proper. The supplemental jurisdiction statute specifically prohibits the use of supplemental jurisdiction by plaintiffs against persons made parties under Rule 19. It is also contrary to Rule 19(b), which provides for an analysis of what a court should do if there is a Rule 19(a) party who cannot be joined because of jurisdiction. (A) is incorrect. Rule 20 permits joinder of additional co-plaintiffs or co-defendants when a claim relates to the same occurrence or transaction and there is a question of fact or law in common. However, permissive joinder merely permits the plaintiff to make this choice and does not permit the court to impose a party on the plaintiff.

Question 9

A plaintiff sued an auto manufacturer for negligence after a car accident involving the plaintiff’s car that was made by the auto manufacturer. Sixty days after service of the complaint and 40 days after service of the manufacturer’s answer that contained no counterclaim, the plaintiff filed a motion seeking to file an amended complaint adding a claim for strict products liability against the auto manufacturer stemming from the same incident. The statute of limitations for strict products liability claims expired one week before the motion was filed.

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

A Grant the motion, because every party is entitled to amend once as a matter of course.Grant the motion, because every party is entitled to amend once as a matter of course.

B Grant the motion, because the amended complaint relates back.Grant the motion, because the amended complaint relates back.

C Deny the motion, because, while the motion is timely, the proposed claim is futile because the statute of limitations has run.Deny the motion, because, while the motion is timely, the proposed claim is futile because the statute of limitations has run.

D Deny the motion, because it is not timely.

Answer 9

B

The court should grant the motion. Federal Rule of Civil Procedure 15 states that leave of court (to grant motions to amend) is to be “freely given when justice so requires.” The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice. Additionally, for statute of limitations purposes, proposed claims may be considered to “relate back” to the date of the original pleading in which the claim was made under Rule 15(c). That is critical here because, although the statute of limitations for the proposed products liability claim had expired at the time the motion was made, the amended complaint asserting a products liability claim relates back to the original filing because that claim stems from the same facts alleged in the original complaint, and the statute of limitations had not expired at the time of the original filing. (A) is incorrect because a plaintiff may amend the complaint once as a matter of course (i.e., without court intervention) not later than 21 days after service of the auto manufacturer’s answer. Here, 40 days have passed since the auto manufacturer filed its answer, so amending as a matter of course is not permitted. (C) is incorrect. Although the proposed claim would be futile if filed in an original complaint, here, because the claim can relate back to a complaint filed at a time when the proposed claim was still viable, the proposed claim is not considered futile. (D) is incorrect by suggesting that the motion is not timely. Although plaintiff can no longer amend as a matter of course, there is no absolute date pursuant to which a motion to amend is untimely.

Question 10

An attorney in one state represented a plaintiff for personal injuries sustained due to the negligence of the defendant, which occurred on January 20. The statute of limitations for the plaintiff’s cause of action is governed by the law of a different state. That statute of limitations is only three months. In other states, the statute of limitations for similar causes of action ranges from two years to five years; in the attorney’s home state it is three years. The plaintiff first went to see the attorney on June 15, after the statute of limitations had expired. The attorney, based on his experience in other states, believed that the case was well within the statute of limitations. He drafted a complaint, signed it, and filed it in federal court on June 20. The case was immediately dismissed based on the fact that the statute of limitations had expired.

May the attorney be sanctioned?

A No, because he did not know that the plaintiff’s case was not warranted by existing law.No, because he did not know that the plaintiff’s case was not warranted by existing law.

B No, because he could have argued that the statute of limitations should be reversed.No, because he could have argued that the statute of limitations should be reversed.

C Yes, because the attorney’s signature makes him strictly liable for any defects in the complaint.Yes, because the attorney’s signature makes him strictly liable for any defects in the complaint.

D Yes, because he should have known that the plaintiff’s case was not warranted by existing law.

Answer 10

D

The attorney may be sanctioned. In signing a pleading, the attorney represents, among other things, that he has made a reasonable inquiry into the factual and legal grounds for the pleadings. Here, had the attorney performed any sort of research into the matter, he would have discovered the unusually short statute of limitations period and that, as a result, the plaintiff did not have a valid cause of action. Thus, the attorney violated Federal Rule 11, and he may be sanctioned. (A) is incorrect because the standard is an objective, not subjective, standard. (B) is incorrect because statutes of limitations are made by the legislature, and the probability of a judicial overturn is nil. Thus, a good faith argument that the statute of limitations should be overturned is impossible to make. (C) is incorrect because a signature alone is insufficient for sanctions. There must be some objective misconduct on the part of the attorney or client.

Question 11

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.

The defendant filed a response to the motion, noting that her answer denied negligence and further denied that her traffic signal was red, and argued that the issue of negligence and the issue of whether her traffic signal was red were in dispute, so those issues should be tried to a jury.

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

A Deny the motion, because whenever a defendant’s pleadings deny allegations in a plaintiff’s complaint, the disputed issues must be submitted to trial.Deny the motion, because whenever a defendant’s pleadings deny allegations in a plaintiff’s complaint, the disputed issues must be submitted to trial.

B Deny the motion, because the defendant has no duty to produce evidence on the issue of negligence since the plaintiff has the burden of proof on that issue.Deny the motion, because the defendant has no duty to produce evidence on the issue of negligence since the plaintiff has the burden of proof on that issue.

C Grant the motion, because the plaintiff supported his motion with substantial evidence indicating that the defendant was negligent, and the defendant did not come forward with admissible evidence in rebuttal.Grant the motion, because the plaintiff supported his motion with substantial evidence indicating that the defendant was negligent, and the defendant did not come forward with admissible evidence in rebuttal.

Incorrect
D Grant the motion, because whenever a plaintiff’s complaint properly states a claim for relief, a defendant may not rest on the denials in the defendant’s pleading, but must produce evidence that negates the claim.

Answer 11

C

The court should grant the plaintiff’s motion. If a party fails to support an assertion of fact or fails to properly address another party’s assertion of fact, the court may consider the fact undisputed for purposes of the motion, grant summary judgment if appropriate, give the party an opportunity to address the fact, or issue any other appropriate order. Here, the plaintiff came forward with affidavits supporting his contention that the light was red when the defendant entered the intersection. The defendant here must counter those affidavits with her own or risk summary judgment being entered against her. (A) is incorrect because, in a summary judgment motion, a party may not rest on pleading allegations (save for the limited exceptions when the pleading is verified or when the pleadings show a material fact is not in dispute). (B) is incorrect. Although the plaintiff bears the initial burden of coming forward with evidence, the plaintiff has done so here by presenting affidavits on the issue. (D) is also incorrect. In a summary judgment motion, the moving party bears the burden of putting forth evidence that a material fact is not in dispute.

Question 12

A gas station owner properly filed a breach of a noncompete clause in an employment contract case in federal court against a former manager, who began building a similar gas station across the street. The owner’s complaint requested money damages and an injunction to stop the construction.

The former manager wants a jury trial, but the gas station owner prefers that the issue be litigated before the judge.

Can the former manager demand a jury trial for both claims?

A Yes, because the Seventh Amendment gives both the plaintiff and the defendant the right to demand a jury trial in civil actions.Yes, because the Seventh Amendment gives both the plaintiff and the defendant the right to demand a jury trial in civil actions.

B Yes, because the Seventh Amendment only gives the plaintiff the right to demand a jury trial in civil actions.Yes, because the Seventh Amendment only gives the plaintiff the right to demand a jury trial in civil actions.

C No, because the Seventh Amendment only gives plaintiffs the right to demand a jury trial in civil actions, and when a case presents both legal and equitable claims, the right is only preserved for legal claims, not equitable claims.No, because the Seventh Amendment only gives plaintiffs the right to demand a jury trial in civil actions, and when a case presents both legal and equitable claims, the right is only preserved for legal claims, not equitable claims.

D No, because, while the Seventh Amendment gives both the plaintiff and defendant the right to demand a jury trial in civil actions, when a case presents both legal and equitable claims, the right is only preserved for all legal claims, not equitable claims.

Answer 12

D

The former manager may not demand a jury trial for both claims. The Seventh Amendment preserves the right to a jury trial for both the plaintiff and defendant for civil actions in federal court of facts in all “suits of common law” where the amount in controversy exceeds $20. The determination is historical and turns initially on whether the claim or relief was available at law or in equity in 1791. However, the Supreme Court has demonstrated a clear preference for jury trials in doubtful cases and has held that, if damages are claimed as part of an action seeking an injunction, the defendant cannot be denied a jury on the damages issues on the ground that they are “incidental” to the equitable relief. As such, when a case presents both legal and equitable claims, the right to a jury is preserved for all legal claims, but not for equitable claims. Instead, the legal claim should be tried first to the jury, and the equitable claim will go to the court (the jury’s finding on fact issues will bind the court in the equitable claims). Here, the call of the question asks if the former manager can demand a jury trial for both claims. Under the Seventh Amendment, he only has a right to a jury trial on the legal claim for money damages, not the equitable claim for the injunction. Instead, the court will hear the equitable claim for the injunction, but will be bound by any of the jury’s factual decisions that relate to the equitable claim. (A) is wrong because, although it is a correct statement of law, it is incomplete and does not directly answer the question asked. Both plaintiffs and defendants do have a right to demand a jury trial for civil actions in federal court, but in cases asserting both legal and equitable claims, the right to trial extends only to all issues that are relevant to the legal claims. Here, since the injunction is an equitable claim, the former manager does not have a right to a jury to review that claim. (B) and (C) are both wrong because the Seventh Amendment gives both the plaintiff and the defendant the right to demand a jury trial as set forth above, not just the plaintiff.

Question 13

A patient properly sued her doctor in federal court for medical malpractice. At trial, the doctor’s attorney called four well-known experts in the field who uniformly agreed that the doctor acted within the normal standard of care in treating the patient. The patient’s attorney called only one young and inexperienced expert who opined that the doctor did not act within the normal standard of care; however, he contradicted himself on the stand and could not answer certain simple questions. During the trial, no motions were made by the doctor’s attorney. Surprisingly, the jury returned a verdict in favor of the patient, and the doctor’s attorney filed a renewed motion for judgment as a matter of law 22 days after the judgment was entered.

Will the court grant the motion?

A Yes, because the judgment was based on a verdict that a reasonable jury would not have had a legally sufficient basis to reach.Yes, because the judgment was based on a verdict that a reasonable jury would not have had a legally sufficient basis to reach.

B Yes, because there was no genuine dispute of material fact and the moving party was entitled to judgment as a matter of law.Yes, because there was no genuine dispute of material fact and the moving party was entitled to judgment as a matter of law.

C No, because the doctor did not move for a judgment as a matter of law during the trial.No, because the doctor did not move for a judgment as a matter of law during the trial.

D No, because a renewed motion for judgment as a matter of law must be filed within 21 days after the judgment is entered.

Answer 13

C

The court should not grant the motion. A judgment notwithstanding the verdict (“JNOV”) is now called a renewed motion for a judgment as a matter of law. To be valid, the party making the renewed motion must have moved for judgment as a matter of law at some time during the trial. Here, the doctor never moved for a judgment as a matter of law during the trial. Therefore, his motion for a renewed judgment as a matter of law will be denied. (A) is wrong. Although it states the correct standard of review for a renewed motion for judgment as a matter of law (the judgment was based upon a verdict that a reasonable jury would not have had a legally sufficient basis to reach a verdict), the problem in this question is that the doctor failed to move for a judgment as a matter of law at trial. Therefore, this motion cannot even be considered. (B) is wrong because this is the standard used to review a motion for summary judgment. (D) is wrong because it is a misstatement of law. A renewed motion for judgment as a matter of law must be filed no later than 28 days after the judgment is entered, not 21 days.

Question 14

An elderly woman entered into a contract with a company in the business of providing home care services. Believing that she had been duped by representatives of the company, the woman commenced an action in federal court, properly based on diversity, seeking rescission of the contract. The company answered, denying the principal allegations of the woman’s complaint and asserting a counterclaim against the woman for breach of contract. In addition, the company timely served a demand for a jury trial. The woman did not.

Which statement best describes the roles of the judge and jury as finders of fact in the trial of the parties’ claims?

A The judge will first determine the issues relating to the woman’s claim for rescission, and if it concludes the rescission is not warranted, the jury will determine the issues relating to the company’s breach-of-contract counterclaim.The judge will first determine the issues relating to the woman’s claim for rescission, and if it concludes the rescission is not warranted, the jury will determine the issues relating to the company’s breach-of-contract counterclaim.

B The jury will first determine the issues relating to the breach of contract claim, and the judge will determine the issues relating to the rescission claim that have not already been resolved by the jury.The jury will first determine the issues relating to the breach of contract claim, and the judge will determine the issues relating to the rescission claim that have not already been resolved by the jury.

C The jury will act as the sole finder of fact.The jury will act as the sole finder of fact.

D The judge may either act as the sole finder of fact on both the claim and the counterclaim

Answer 14

B

If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim. (A) is incorrect because all fact issues relating to the company’s legal claim must first be determined by the jury. Only then may the judge try the woman’s equitable claim. (C) and (D) are both incorrect because neither the jury nor judge acts as the sole finder of fact when the case has legal claims and equitable claims, and a jury has been demanded on the legal claims.

Question 15

A homeowner sued a contractor in federal court for damages resulting from an unsuccessful roof repair. However, the homeowner failed to attend status conferences and failed generally to prosecute the action. As a result, the court dismissed the case with prejudice for want of prosecution. The homeowner then filed her complaint in a different federal court. In his answer the contractor asserts the affirmative defense of claim preclusion.

Should the court dismiss the case?

A No, because the merits of the case were not determined.No, because the merits of the case were not determined.

B No, because the court erred in designating the dismissal as one with prejudice.No, because the court erred in designating the dismissal as one with prejudice.

C Yes, because the dismissal was with prejudice.Yes, because the dismissal was with prejudice.

D Yes, because dismissals for want of prosecution are on the merits.

Answer 15

C

The court should dismiss the case. For claim preclusion to apply, (i) the earlier judgment must be a valid, final judgment on the merits; (ii) the cases must be brought by the same claimant against the same defendant; and (iii) the same cause of action must be involved in the later suit. Under Federal Rule of Civil Procedure 41, dismissals for lack of prosecution are with prejudice and operate as an adjudication on the merits unless the court designates otherwise. As a result, the judgment has claim preclusion effect on subsequent cases between the parties. (A) is incorrect. Although the factual merits of the case were not determined, Rule 41 dictates that the judgment is on the merits unless the court states otherwise. (B) is factually incorrect, as the court complied with Rule 41. (D) is incorrect as too broad. The court may designate a dismissal for want of prosecution as an adjudication on the merits but is not required to do so. Here, the court could have designated the dismissal as one without prejudice, meaning that the plaintiff could bring her action in another court.

Question 16

A car driver was hit by a pickup truck driver and suffered severe injuries. The car driver properly sued the truck driver in federal court for negligence, based on diversity jurisdiction, claiming the truck driver ran a red light. The truck driver defended on the grounds that the car driver was contributorily negligent for speeding, which under the applicable law would completely bar the car driver’s claim.

The case went to trial, where all issues were vigorously litigated by the parties. The jury returned a verdict for the truck driver, specifically finding that the car driver was negligent for speeding.

Thereafter, a passenger who was riding with the truck driver filed a diversity claim for negligence in federal court against the car driver for personal injuries from the same accident. The passenger wants to preclude the car driver from relitigating the question of whether the car driver was negligent.

How will the court likely rule?

A Not preclude the car driver from relitigating the question of whether she was negligent, because that finding was not essential to the judgment in the initial claim.Not preclude the car driver from relitigating the question of whether she was negligent, because that finding was not essential to the judgment in the initial claim.

B Not preclude the car driver from relitigating the question of whether she was negligent, because to do so would violate the car driver’s due process rights.Not preclude the car driver from relitigating the question of whether she was negligent, because to do so would violate the car driver’s due process rights.

C Preclude the car driver from relitigating the question of whether she was negligent due to issue preclusion.Preclude the car driver from relitigating the question of whether she was negligent due to issue preclusion.

D Preclude the car driver from relitigating the question of whether she was negligent due to claim preclusion.

Answer 16

C

The court will preclude the car driver from relitigating the question of whether she was negligent. Under issue preclusion (collateral estoppel), a judgment binds the plaintiff or defendant (or their privies) in subsequent actions on different causes of action between them (or their privies) as to issues actually litigated and essential to the judgment in the first action. Issue preclusion focuses on something relatively narrow-an issue that was litigated and determined in the first case, and that is relevant in a second case. With issue preclusion, the issue is deemed established in the second case without need to proffer evidence on it. Here, the car driver was a party to the first lawsuit and, after both parties “vigorously litigated” the issues of negligence, the jury determined that the car driver was negligent in the first case. Since the car driver filed a negligence claim against the truck driver claiming that he ran the red light in the first case, and the truck driver defended on the grounds that the car driver was contributorily negligent for speeding, the issue of who was negligent was essential to the judgment in the first action. Therefore, the court will preclude the car driver from relitigating whether she was negligent in the claim asserted against her by the passenger. For these same reasons, (A) is wrong. (B) is wrong because the car driver’s due process rights are not violated. Due process requires that issue preclusion may be asserted only against someone who was a party (or in privity with a party) to the previous case (the case in which the issue was actually litigated and determined). Here, due process is satisfied because the car driver was a party in the previous claim and vigorously litigated the claim. Note that the car driver may be able to assert the traditional “mutuality” rule to prevent the passenger from asserting issue preclusion, but this is not what was asserted in choice (B); due process was. Under the traditional “mutuality” rule, only someone who was a party (or in privity with a party) in the previous case can use issue preclusion. However, this requirement is not imposed by due process and has been subject to modification in certain circumstances to allow nonparties to take advantage of a prior judgment. In fact, although courts have been very reluctant to permit a nonparty to use issue preclusion to aid him offensively (as a plaintiff) to obtain relief, the Supreme Court has upheld its use offensively by a nonparty where it was fair and equitable to do so. [Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)] (D) is wrong because it incorrectly states that the claim will be precluded by claim preclusion (res judicata). Claim preclusion focuses on something relatively large-the scope of a “cause of action.” If it applies, the result is usually to bar the same party in the first case from asserting a second case against the other party in the first case. Issue preclusion, in contrast, focuses on something relatively narrow- an issue that was litigated and determined in the first case and that is relevant in a second case.

Question 17

A pedestrian sued a driver for personal injuries in federal court, properly invoking diversity of citizenship jurisdiction. In the complaint, the pedestrian alleged that the driver ran a red light and struck the pedestrian while the pedestrian was in the crosswalk. Concurrent with the accident, a police report was prepared on which the name and address of a witness to the accident was listed, but neither party requested a copy of the report from the police department. Thus, when the pedestrian submitted an interrogatory to the driver for the names and addresses of persons with knowledge of the accident known to the driver, the driver truthfully omitted the name of the witness. When asked during his deposition whether he knew of any witnesses, the driver again truthfully answered “I don’t know of any.”

At trial, the jury found for the driver. In one of the special interrogatories answered by the jury, the jury found that the driver had the green light and that the pedestrian was crossing against the light. Six months and a day after a final judgment was rendered in favor of the driver, the pedestrian’s attorney was contacted by the witness, who stated that the driver ran a red light and that the pedestrian had the “walk” sign when he attempted to cross the road.

The pedestrian’s attorney immediately moved for relief from judgment based on newly discovered evidence, and the trial judge granted the motion. On appeal, what should the court do?

A Affirm the trial judge’s decision, because whether to deny or grant a motion for relief from judgment is strictly a matter within the trial judge’s discretion.Affirm the trial judge’s decision, because whether to deny or grant a motion for relief from judgment is strictly a matter within the trial judge’s discretion.

B Affirm the trial judge’s decision, because the driver should have discovered the identity of the witness.Affirm the trial judge’s decision, because the driver should have discovered the identity of the witness.

C Reverse the trial judge’s decision, because more than six months had passed since the judgment was rendered when the trial judge granted the motion.Reverse the trial judge’s decision, because more than six months had passed since the judgment was rendered when the trial judge granted the motion.

D Reverse the trial judge’s decision, because the pedestrian could have discovered the witness’s identity with reasonable dilig

Answer 17

D

The court should reverse the trial judge’s decision. On motion and just terms, the court may relieve a party from a final judgment or order on the following grounds: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year from the judgment; for the other grounds, the motion must be made within a reasonable time. (But remember that a lack of subject matter jurisdiction may be raised at any time.) Such a motion is left to the trial judge’s discretion, and, on appeal, her decision will be reviewed on an “abuse of discretion” standard. Here, the motion would be based on newly discovered evidence. When deciding whether to grant or deny such a motion, the trial judge must determine whether the evidence could have been discovered with any amount of due diligence. Here, the name and address of the witness could have been easily discovered had the pedestrian’s attorney simply requested a copy of the police report from the police department. This is such an obvious case of lack of due diligence on the part of a represented party that it would be an abuse of discretion to grant relief based on newly discovered evidence. (C) is incorrect because the time period for bringing a motion for relief from judgment based on newly discovered evidence is within a reasonable time, not to exceed one year from the judgment, not six months. (A) is incorrect because, although the decision is left to the trial judge’s discretion, the exercise of discretion would be reviewed on appeal on an abuse of discretion standard, and here, the newly discovered evidence could have easily been discovered in time for trial with minimal preparation. Thus, the judge very likely abused discretion by granting the motion. (B) is incorrect. Although a party is required to disclose information within his possession upon a proper request (and after a proper search of his records), and to truthfully answer questions at a deposition, those requirements do not relieve the opposing party from conducting an investigation of her own case. In other words, the fact that the driver’s attorney may have been grossly negligent in preparing his case does not relieve the failure of the pedestrian’s attorney to discover the identity of the witness.

Question 18

A minivan driver from State A and a semi-truck driver from State B were involved in a serious collision on a highway in State B. The minivan driver sued the truck driver in a state court in State A for negligence, and served the truck driver with the summons and complaint via first-class mail. Although the truck driver received the documents, he failed to respond to them or appear in court. The minivan driver eventually obtained a default judgment in state court. State A’s requirements for service of process are the same as the requirements under the Federal Rule of Civil Procedure.

If the minivan driver seeks to enforce the State A judgment against the truck driver in State B, will the minivan driver be successful?

A Yes, under the Constitution’s Full Faith and Credit Clause, because a default judgment is considered “on the merits.”Yes, under the Constitution’s Full Faith and Credit Clause, because a default judgment is considered “on the merits.”

B Yes, under the Constitution’s Full Faith and Credit Clause, because the truck driver received the summons and complaint.Yes, under the Constitution’s Full Faith and Credit Clause, because the truck driver received the summons and complaint.

C No, because claim preclusion precludes the minivan driver from asserting two actions that involve the same parties and the same transaction and occurrence.No, because claim preclusion precludes the minivan driver from asserting two actions that involve the same parties and the same transaction and occurrence.

D No, because

Answer 18

D

The minivan driver will not be successful. Default judgments that are constitutionally or procedurally defective are subject to a collateral attack and may not be enforced under the Constitution’s Full Faith and Credit Clause. Generally, under the Federal Rules of Civil Procedure [Rule 4], service of process can be made by: (i) personal service, (ii) service left at the defendant’s usual place of abode with one of suitable age and discretion residing therein, or (iii) service upon an authorized agent of the defendant. Alternatively, service may be made under state rules or by mail under the waiver of service provision of Rule 4(d). A collateral attack is the name used to describe a defendant’s ability to challenge a default judgment where the defendant never appeared in the action at all. Default judgments that are either constitutionally or procedurally defective are subject to collateral attacks. Under Rule 4 of the Federal Rules of Civil Procedure, which is the same in State A, if no acknowledgment is made to a summons and complaint that was improperly served via first class mail, a defendant must be served according to the Federal Rules of Civil Procedure. If not, it is considered “procedurally defective” and is therefore subject to a collateral attack. Here, because service by first class mail is insufficient under the Federal Rules, the truck driver may collaterally attack the default judgment arguing insufficient service of process. (A) is wrong because, although a default judgment is usually considered a final judgment “on the merits,” the default judgment in State A is not entitled to Full Faith and Credit because the minivan driver failed to properly serve the truck driver. (B) is wrong, because, despite actual receipt of documents, the truck driver was not properly served in accordance with the applicable law. Therefore, as stated above, he can collaterally attack the default judgment. (C) is wrong because, while the previous judgment in State A would prevent the truck driver from relitigating the claim in State B, the minivan driver is only seeking to enforce the prior judgment, not relitigate it. Therefore, claim preclusion does not apply.

Question 19

The passenger in a bus was injured when the bus hit a concrete divider on the highway. The passenger sued the bus company in federal court for negligence. . The case went to trial, and the jury found that the bus company was in fact negligent, awarding the plaintiff $500,000. Judgment was entered on August 5. On August 14, the defendant filed a motion for a new trial. On August 22, the plaintiff filed to enforce the judgment. The court has not issued any orders since the final judgment.

May the plaintiff enforce the judgment?

A No, because judgments cannot be enforced while a post-trial motion is pending.No, because judgments cannot be enforced while a post-trial motion is pending.

B No, because judgments are not enforceable until 30 days after entry.No, because judgments are not enforceable until 30 days after entry.

C Yes, because judgments are enforceable as soon as they are entered.Yes, because judgments are enforceable as soon as they are entered.

D Yes, because judgments are enforceable during the pendency of post-trial motions unless the court otherwise orders

Answer 19

B

Absent a court order, no execution on judgments is allowed for 30 days after entry except for injunctions or receiverships, which are not held up unless otherwise ordered by a court. (A) is incorrect because the fact that a post-trial motion has been filed is irrelevant to the automatic stay provision. Even if no motion were filed, the automatic stay provision would apply absent a court order. (C) and (D) are incorrect; the automatic stay provision would prevent a judgment from being enforced.

Question 20

A college student from State A hit another car driven by a resident from State B when the college student was traveling through State B. The State B driver brought an action in State B state court against the State A college student, who has limited financial resources. The college student filed a motion to dismiss, claiming the State B court lacks personal jurisdiction.

What is the best argument to support the college student’s motion to dismiss?

A The college student did not take actions to purposely avail herself of State B simply by driving through State B.The college student did not take actions to purposely avail herself of State B simply by driving through State B.

B It is unfair, inconvenient, and highly unreasonable to require a college student with limited financial resources to defend the action in State B for financial reasons.It is unfair, inconvenient, and highly unreasonable to require a college student with limited financial resources to defend the action in State B for financial reasons.

C The interstate judicial system’s interest in obtaining the most efficient resolution of the controversy is violated by requiring the college student to defend the action in the forum state.The interstate judicial system’s interest in obtaining the most efficient resolution of the controversy is violated by requiring the college student to defend the action in the forum state.

D State B is not the proper venue to file this claim.

Answer 20

B

The best argument the college student has to defend a motion to dismiss for lack of personal jurisdiction is to argue that the fairness prong of the constitutional minimum contacts test is not met. In addition to sufficient minimum contacts with the forum state, personal jurisdiction must not offend “traditional notions of fair play and substantial justice.” The Supreme Court in International Shoe listed several factors relevant to assess the fairness factor, including the burden on the defendant in terms of convenience in defending the action. Here, the best argument out of the four choices listed is that it would be unfair, inconvenient, and highly unreasonable for a college student from State A with limited financial resources to defend the action in State B. Note that this still may be a losing argument, as this argument will not prevail unless the burden to the defendant is “so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent.” However, this is still the best argument to support the motion to dismiss for lack of personal jurisdiction. (A) is wrong because, to establish the contacts prong of the minimum contacts test, the defendant’s contact with the forum state must result in purposeful availment of the state, meaning the defendant took actions that were purposely directed toward the forum state and from which the defendant derived the benefits and protections of the state’s laws, such as using the roads in the state. Here, driving through State B was sufficient because it was a purposeful activity and she was protected by State B’s police and traffic laws while doing so. (C) is wrong because, although considering the interest in obtaining the most efficient resolution of the controversy is one of the factors the Supreme Court listed in assessing the fairness prong, it is inapplicable to the facts. Here, litigation in either State B or State A would likely be equally efficient. (D) is wrong because State B clearly is a proper venue, as it is the judicial district where the claim arose. Moreover, the question stated that the motion to dismiss was based on lack of personal jurisdiction, not lack of venue.

Question 21

When he turned 21, a young man who lived in State A decided to move to a city in State B. He loaded all his possessions in his truck and trailer and set out for State B. While en route, he was involved in a serious accident in State C with a woman driving an SUV, injuring both parties. Because of his injuries, the man has remained in State C for several months. However, he still intends to relocate to the city in State B as soon as he has recuperated and is able to travel. The woman, a citizen and resident of State D, is preparing to file a negligence action in federal district court against the man for the injuries she suffered in the State C accident.

If the woman files the action before the man proceeds to State B, in what federal district or districts is venue proper?

A The District of State C only.The District of State C only.

B The District of State C and the District of State A.The District of State C and the District of State A.

C The District of State C and the District of State B.The District of State C and the District of State B.

D The District of State C, the District of State A, and the District of State B.

Answer 21

B

Venue is proper in the District of State C and the District of State A. Federal venue in civil actions is proper in (1) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (2) the district in which a substantial part of the events or omissions giving rise to the claim occurred. If there is no district anywhere in the United States that satisfies (1) or (2), the action may be brought in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. Here, the District of State C is a proper venue because a substantial part of the events giving rise to the claim occurred there. Additionally, at the time of the accident, the man’s domicile was in State A. It remains his domicile until he acquires a new one by being physically present in a new place while intending to make that new place his permanent home. The man did not acquire a new domicile in State B because he has yet to be physically present there (although he does intend to make it his permanent home). As a result, (B) is the correct answer. (A) is not correct because the answer does not discuss the possibility of venue being based on the man’s domicile. State C was not his domicile, because he does not intend to live indefinitely in State C. As stated above, State A remains his domicile. (C) and (D) are not correct because, as discussed above, the man has not made either place his domicile.

Question 22

A patient properly filed a medical malpractice claim against a doctor in federal district court. The complaint simply asserted negligence as the grounds for relief without any facts supporting the claim. The doctor filed a pretrial motion for a more definite statement, which the court denied. Immediately thereafter, and without submitting an answer, the doctor filed a motion to dismiss, asserting that the court lacked personal jurisdiction.

Will the court grant this motion to dismiss?

A Yes, because a defendant may file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs later.Yes, because a defendant may file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs later.

B Yes, because the lack of personal jurisdiction defense can be raised at any time, even for the first time on appeal.Yes, because the lack of personal jurisdiction defense can be raised at any time, even for the first time on appeal.

C No, because a defendant must file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs first.No, because a defendant must file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs first.

D No, because a lack of personal jurisdiction defense can only be raised in an answer or it is waived, and the defendant did not submit an answer.

Answer 22

C

A defendant must file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs first. If he does not, the defendant waives the defense. Here, the defendant first filed a pretrial motion for a more definite statement, which the court denied. Since he did not assert the lack of personal jurisdiction in this first motion, he waived the defense in the subsequent motion. (A) is wrong because it misstates the rule. This affirmative defense must be asserted in either a motion or an answer, whichever is first, not later, or it is waived. (B) is wrong because it also misstates the rule for personal jurisdiction. This would be the correct answer if the motion to dismiss were based on lack of subject matter jurisdiction, but this motion is based on lack of personal jurisdiction. (D) is wrong because it also misstates the law, as set forth above.

Question 23

The driver of a car filed a civil action in federal district court against the owner and operator of a truck that collided with her vehicle. The driver has reason to believe that the truck was serviced at a particular auto repair shop shortly before the accident. The driver wants to see any records the repair shop has regarding the truck’s servicing because a failure to properly service the truck could help prove the truck owner’s liability. The driver requested the service records from the truck owner, but the truck owner has no service records in his possession.

Can the driver obtain the truck’s service records from the repair shop?

A Yes, by serving on the repair shop a request for production of the designated documents.Yes, by serving on the repair shop a request for production of the designated documents.

B Yes, by serving on the repair shop a subpoena requiring that the shop produce the documents for inspection.Yes, by serving on the repair shop a subpoena requiring that the shop produce the documents for inspection.

C No, because, while the driver can depose the repair shop owner or mechanics, she cannot force the repair shop to permit inspection of the records unless the shop voluntarily agrees.No, because, while the driver can depose the repair shop owner or mechanics, she cannot force the repair shop to permit inspection of the records unless the shop voluntarily agrees.

D No, because the mechanics at the repair shop are experts, so discovery from the repair shop is limited.

Answer 23

B

The driver can obtain the truck’s service records from the repair shop by serving a subpoena requiring the shop to produce the documents. A party may serve on a nonparty a subpoena that compels the nonparty to produce physical material, including documents and electronically stored information, relevant to the pending action. (A) is incorrect because a request for production is used to request documents from parties. Nonparties require subpoenas. (C) is incorrect because a party can force a nonparty to permit the inspection of records. (D) is incorrect because the mechanics are not experts who have been retained in anticipation of litigation or trial.

Question 24

A windstorm blew down a light in the parking lot of a grocery store, hitting one of the store’s customers. The customer filed a civil action against the store seeking compensatory damages, alleging that the store negligently maintained the light. After the action was filed, the store’s lawyer visited the store and spoke with one of the store’s clerks who saw the light fall. The lawyer asked the clerk to write out in his own words and handwriting exactly what he saw, and the clerk did so. The lawyer then asked the clerk a number of questions about the incident and wrote his own notes in the margins of the statement written by the clerk. Unfortunately, the clerk died in an unrelated car accident two weeks later. The customer’s lawyer served a document request on the store seeking all documents relating in any way to the accident. In response, the store described the written statement prepared by the clerk but refused to produce it. The customer filed a motion asking the court to compel the store to produce the statement.

How should the court rule?

A Because the document is highly relevant and not subject to any limitations on discovery, the document must be produced as is.Because the document is highly relevant and not subject to any limitations on discovery, the document must be produced as is.

B As long as the customer can show that she has no other way to obtain the information provided by the clerk, the document must be produced as is.As long as the customer can show that she has no other way to obtain the information provided by the clerk, the document must be produced as is.

C As long as the customer can show that she has no other way to obtain the information provided by the clerk, the document must be produced but with the notes written by the store’s lawyer redacted.As long as the customer can show that she has no other way to obtain the information provided by the clerk, the document must be produced but with the notes written by the store’s lawyer redacted.

D Because the document is protected from discovery under the work product doctrine, the document need not be produced.

Answer 24

C

The court should order the store to produce the statement but redact the notes written by the store’s lawyer. The statement is work product because it was made by the store’s lawyer in anticipation of litigation. Work product is discoverable if the opposing party can show substantial need and that she cannot obtain the information in an alternative way without undue hardship. Because the clerk died in a car accident, the customer can show that she has substantial need for the statement and cannot obtain it in an alternative way. (B) is incorrect because, when a court orders the disclosure of work product, it must take steps to avoid the disclosure of mental impressions, conclusions, opinions, or legal theories of the disclosing party. Thus, although the court should order the store to produce the statement for the customer, the lawyer’s notes written on the statement must still be protected. (A) is incorrect because the statement is work product. (D) is incorrect because the customer can overcome the work product immunity under the circumstances here.

Question 25

While traveling on a commercial bus line, a passenger was injured when some luggage fell on him. As required by applicable state law, the bus company’s in-house attorney conducted an investigation and filed the required report with the state transportation department. The passenger subsequently filed a civil action against the bus company in federal district court, seeking compensatory damages for the injuries he suffered. During discovery, the passenger’s lawyer served on the bus company a request for production of documents, including a request for the report that the bus company filed with the state. The bus company objected to the request for the report and refused to produce it on the grounds that the report was privileged and protected from discovery under the work product doctrine. It did, however, produce other documents that were requested. The passenger then filed a motion to compel production of the report.

If the court finds that the bus company’s claims of privilege and work product were not substantially justified, what orders must the court make relating to the passenger’s request for production of the report?

A The court must sanction the bus company for improperly obstructing discovery by entering a default judgment against the bus company.The court must sanction the bus company for improperly obstructing discovery by entering a default judgment against the bus company.

B If the passenger’s attorney has attempted in good faith to resolve the dispute, the court must order the bus company to produce the report and to pay the passenger’s reasonable costs in making the motion.If the passenger’s attorney has attempted in good faith to resolve the dispute, the court must order the bus company to produce the report and to pay the passenger’s reasonable costs in making the motion.

C Regardless of whether the passenger’s attorney has attempted in good faith to resolve the dispute, the court must order the bus company to produce the report and to pay the passenger’s reasonable costs in making the motion.Regardless of whether the passenger’s attorney has attempted in good faith to resolve the dispute, the court must order the bus company to produce the report and to pay the passenger’s reasonable costs in making the motion.

D If the passenger’s attorney has attempted in good faith to resolve the dispute, the court must order the bus company to produce the report, but need not order the company to pay the passenger’s reasonable costs in making the motion.

Answer 25

B

If the passenger’s attorney has attempted in good faith to resolve the dispute, the court must order the bus company to produce the report and to pay the passenger’s reasonable costs in making the motion, including attorney’s fees. Costs will be awarded unless: (i) the movant filed the motion before attempting in good faith to obtain disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances exist that make an award of expenses unjustified. [Fed R. Civ. P. 37(a)] None of these exceptions apply. (A) is incorrect because default judgments are possible sanctions for a party who fails to comply with an order to provide discovery. (C) is incorrect because an attempt to resolve the discovery dispute without court intervention is required before an award of reasonable costs may be made. (D) is incorrect because reasonable costs must be awarded absent the exceptions noted above, which do not appear applicable here. [Fed. R. Civ. P. 37(a)(5)(A)]