Long Questions Flashcards
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 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 valid 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 driver be successful?
No, because the truck driver may collaterally attack the default judgment for insufficient service of process.
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
The plaintiff sued the defendant in federal court for breach of contract. The case went to trial, and the jury found in favor of the plaintiff and awarded her $125,000. Judgment was entered on June 1. On June 10, the defendant filed a motion for a new trial. On June 18, the plaintiff files to enforce the judgment. The court has not issued any orders since the final judgment on June 1.
May the plaintiff enforce the judgment?
- No, because judgments are not enforceable until 30 days after entry.
- Yes, because judgments are enforceable as soon as they are entered.
Yes, because judgments are enforceable as soon as they are entered.
Absent a court order, no execution on a judgment is allowed for 30 days after entry except for injunctions and receiverships, which are not held up unless otherwise ordered by a court
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?
- 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 request for production of the designated documents.
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. (1) is incorrect because a request for production is used to request documents from parties. Nonparties require subpoenas
A citizen of State A asserted a state law claim of $80,000 against a citizen of State B in the federal district court. The State B citizen has a state law claim against another citizen of State B for $90,000 that arose out of the same transaction or occurrence as the original complaint. As a result, the State B citizen brought a third-party action against that person.
Does the court have subject matter jurisdiction over the State B citizen’s claim in the third-party action?
Yes, because the court has supplemental jurisdiction.
The court has subject matter jurisdiction over this claim under its supplemental jurisdiction powers. The prerequisites for diversity of citizenship do not exist, because both are residents of State B. However, the court would have supplemental jurisdiction over a third-party claim that arose from the same transaction or occurrence as the underlying claim
State A filed a federal question action in State B against a B Defendant. The complaint also included a state law claim. In Trial the Federal Question Claim is dismissed on the merits. The D moved for dismissal of the state law claim as well.
How should the court rule?
The court should, in its discretion, retain jurisdiction over the state law claim because the trial has begun.
The federal court has discretion to exercise supplemental (pendent) jurisdiction over the state law claim if the federal and state claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding.
P from state A sues B from state B in the state court of state B. Both diversity and federal question apply.
Can B remove the case to Federal Court in state B?
Yes, because a federal question has been presented.
The removal statute provides that “any civil action of which the district courts have [federal question jurisdiction] shall be removable without regard to the citizenship or residence of the parties.” [28 U.S.C. §1441(b)] When both a federal question and diversity jurisdiction exist, the federal question jurisdiction normally “trumps” diversity jurisdiction. In any event, if this case were to be solely based on diversity, the defendant could not remove because she is a citizen of the forum state
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?
No, because the federal courts and state courts have concurrent jurisdiction over the action.
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?
- No, because the colleague will not testify at trial on behalf of the doctor.
- Yes, because the colleague was not retained or specially employed by the doctor.
The letter is not discoverable because the colleague is a nontestifying expert. An expert is a person with knowledge, skill, experience, training, or education in a particular field. The opinion of an expert consulted in anticipation of litigation is discoverable if a party intends to call the expert as a trial witness. Conversely, the opinion of an expert who is retained in anticipation of litigation but who is not expected to testify at trial (i.e., a consulting expert) is discoverable only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means. Absent such circumstances, these opinions are not discoverable, regardless of whether the nontestifying expert was informally consulted or whether she was retained or specially employed. Thus, the doctor need not produce the letter from his colleague, an expert in cardiology, because the doctor does not expect to call her as a trial witness
- is incorrect because the opinion of a nontestifying expert is nondiscoverable regardless of whether she is formally retained or not
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?
- It must search its files and then disclose the information.
- It may allow the collector to search the records himself.
Assuming the interrogatory is otherwise proper, the manufacturer may search the 2 million order forms itself or it may allow the collector access to the files. In a situation where desired information may be ascertained from the business records of the party on whom the interrogatory was served, and where the burden of finding the information is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to provide the serving party reasonable opportunity to examine the records. [Fed. R. Civ. P. 33]
- is incorrect because instead of searching the files itself, the manufacturer can allow the collector access to do it.
A homeowner hired an exterminator company to treat an existing house to protect it from termite infestation. The exterminator determined that it had to remove dirt around part of the foundation in order to treat the house properly. The exterminator thus hired a subcontractor to remove the dirt with a backhoe. While removing the dirt, the subcontractor damaged the foundation of the house. The homeowner filed an action against the exterminator in federal district court, seeking $90,000 in damages.
May the exterminator properly maintain a third-party claim against the subcontractor for any liability the exterminator may have to the homeowner?
- Yes, because third-party claims are permitted whenever they arise from the same transaction or occurrence as the original claims in an action.
- Yes, because the exterminator is claiming that the subcontractor is liable for the exterminator’s liability to the plaintiff.
The exterminator may properly maintain a third-party claim against the subcontractor. A defending party may implead a nonparty if the nonparty is or may be liable to the party for any part of a judgment that the plaintiff may recover against it. Because the exterminator is claiming that the subcontractor is liable for the exterminator’s liability to the plaintiff, it may implead the subcontractor
- is too broad. It is not sufficient that the third-party claim merely arise from the same transaction or occurrence.
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?
- No, because the motion should have been made before the verdict was rendered.
- Yes, because the department store impliedly consented to the introduction of the evidence.
The court should allow the amendment. An issue not raised by the pleadings is treated as if raised in the pleadings if is tried by the parties’ express or implied consent. In such a case, a party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise the unpleaded issue. Here, the department store impliedly consented to the introduction of evidence relating to the jewelry contract. Not only did it fail to object to the evidence, it introduced evidence to show that the jewelry was defective. Thus, the manufacturer was entitled to move to amend its complaint to conform to the evidence introduced at trial.
- is incorrect because a motion to amend a pleading to conform to the evidence introduced at trial may be made at any time, even after judgment.
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?
- 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 act as the sole finder of fact.
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.
- is 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.
Acompany filed a diversity action against the propeller company for breach of contract. At the conclusion of the trial, the aerospace company submitted proposed jury instructions listing a number of defenses. 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 its 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.
(C) Because the aerospace company did not timely object to the instructions, the court will review them using a plain error standard of review. In order to reserve its right to appeal an error in an instruction given or, as is the case here, a failure to give an instruction, a party must object on the record before the instructions are given. If adequately preserved, the instructions are reviewed using an abuse of discretion standard. However, if the objection is not made (and therefore not preserved for full appellate review), then the court’s review is limited to considering whether there was a plain error in the instruction that affected substantial rights. Thus (C) is correct, and (A), (B), and (D) are incorrect
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 judgment as a matter of law 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.
(A) When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs a de novo standard. It does so because the issue is one of law. In contrast, when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion. Note that when a renewed motion for judgment as a matter of law and a motion for a new trial are made in the alternative and the renewed motion is granted, the court rules hypothetically on the new trial motion so that no remand is required if the ruling on the judgment as a matter of law is subsequently reversed on appeal
A pilot who owned an air charter service adjacent to a crop duster’s hangar at a municipal airport sued the crop duster in federal court for allowing chemicals to contaminate the ground outside the pilot’s office in violation of federal standards. The pilot sought a preliminary injunction against further operations by the crop duster. The court denied the injunction, but agreed to hear the case on the merits. The pilot believes that the pesticides pose an immediate danger, so he appeals the denial of the injunction.
May the pilot immediately appeal the denial of the injunction?
- No, because the trial court agreed to hear the case on the merits.
- Yes, because federal law permits appeal of orders denying an injunction.
The pilot may immediately appeal the court’s decision, because federal law permits appeal of orders denying an injunction. Interlocutory orders denying an injunction may be appealed in the federal court system. [28 U.S.C. §1292(a)] This constitutes an exception to the general rule that interlocutory orders are not appealable because they are not final.
