MBE - Civ Pro Flashcards
A railroad worker’s widow brought a wrongful death action in federal court against the railroad, claiming that its negligence had caused her husband’s death. At trial, the widow offered the testimony of a coworker of the husband. The coworker testified that he had seen the rail car on which the husband was riding slow down and the cars behind it gain speed. The coworker also stated that he later heard a loud crash, but did not turn around to look because loud noises were common in the yard. Three other railroad employees testified that no collision had occurred. At the close of the evidence, the railroad moved for judgment as a matter of law, which was denied, and the case was submitted to the jury. The jury returned a verdict for the widow. The railroad has made a renewed motion for judgment as a matter of law. What standard should the court apply to determine how to rule on the motion?
(A) Whether the evidence revealed a genuine dispute of material fact supporting the widow’s claim.
(B) Whether the verdict is against the weight of the evidence.
(C) Whether the widow presented a scintilla of evidence to support the verdict.
(D) Whether there is substantial evidence in the record to support the verdict, resolving all disputed issues in the widow’s favor.
(D) Whether there is substantial evidence in the record to support the verdict, resolving all disputed issues in the widow’s favor.
A university student, a citizen of State A, believes that her university violated federal law when it eliminated funding for the women’s varsity volleyball team. She has sued the university, a nonprofit corporation located and incorporated in State B, and the university’s athletic director, a citizen of State B, in federal court in State B. What is the best method of serving the defendants?
(A) Service as required by State B’s rules of civil procedure.
(B) Service by a process server’s leaving copies of the summons and complaint with secretaries in the respective offices of the athletic director and the university president.
(C) Service by emailing copies of the summons and complaint to the athletic director and the university president.
(D) Service by the student herself on the athletic director and the university president.
(A) Service as required by State B’s rules of civil procedure.
A manufacturer sued a buyer in federal court for failing to make timely payments under the parties’ sales contract. The case was tried to the court solely on documentary evidence. Immediately after the close of the evidence, the judge announced from the bench, “Judgment shall be entered for the manufacturer,” and judgment was so entered. The buyer has appealed the judgment. What is the buyer’s best argument for persuading the appellate court to reverse the judgment?
(A) The judgment is clearly erroneous because it was based solely on documentary evidence.
(B) The manufacturer was required to file proposed findings and conclusions before the trial court ruled.
(C) The trial court erred because it announced the judgment without giving the parties an opportunity to submit proposed findings and conclusions.
(D) The trial court erred by not providing findings and conclusions.
(D) The trial court erred by not providing findings and conclusions.
A patient domiciled in State A sued a surgeon domiciled in State B in a federal court in State A, alleging claims for malpractice. The surgeon moved to dismiss the action for lack of personal jurisdiction. The court denied the motion and set discovery cutoff and trial dates. The surgeon has appealed the denial of the motion. Should the appellate court hear the merits of the surgeon’s appeal?
(A) No, because the appellate court lacks jurisdiction over the appeal.
(B) No, because the district court’s decision on jurisdiction is final.
(C) Yes, because a contrary appellate decision could terminate the action.
(D) Yes, because the surgeon’s personal-jurisdiction challenge raises a constitutional question.
(A) No, because the appellate court lacks jurisdiction over the appeal.
The attorney for a plaintiff in an action filed in federal district court served the defendant with the summons, the complaint, and 25 interrogatories asking questions about the defendant’s contentions in the case. The interrogatories stated that they were to be answered within 30 days after service. The defendant is likely to succeed in obtaining a protective order on which of the following grounds?
(A) Interrogatories are only proper to discover facts, not contentions.
(B) Interrogatories may not be served until an answer to the complaint is filed.
(C) Interrogatories may not be served until the parties have conferred to arrange for initial disclosures and prepare a discovery plan.
(D) The interrogatories exceed the number permitted without permission from the court or an agreement between the parties.
(C) Interrogatories may not be served until the parties have conferred to arrange for initial disclosures and prepare a discovery plan.
A construction worker sued an insulation manufacturer in federal court, claiming that he had developed a chronic health condition as a result of 20 years of exposure to the manufacturer’s insulation at his work sites. The manufacturer answered, denying all liability and stating that it had never supplied its insulation to the worker’s employer. The worker’s attorney deposed the manufacturer’s president, and the manufacturer’s attorney deposed the worker. Immediately thereafter, the manufacturer moved for summary judgment on the ground that the worker had no evidence showing that the insulation had ever been used by the worker’s employer. What would be the worker’s best response to the motion for summary judgment?
(A) Argue that more time is needed for additional discovery to show the manufacturer’s liability, and attach a declaration describing the desired discovery.
(B) Argue that the motion should be denied, because a central issue in the case will be manufacturer’s credibility on the question of its distribution of the insulation, and only a jury can decide questions of credibility.
(C) Argue that the motion should be denied, because the manufacturer failed to attach any evidence to its motion to show that the insulation was not used by the worker’s employer.
(D) Make a cross-motion for summary judgment arguing that the manufacturer has introduced no evidence to show that its insulation did not harm the worker.
(A) Argue that more time is needed for additional discovery to show the manufacturer’s liability, and attach a declaration describing the desired discovery.
A small commercial airplane crashed in State A. The passengers and pilot, all citizens of State B, were killed in the crash. The airline that owned and operated the airplane is incorporated and has maintenance facilities and principal place of business in State C. One day before the statute of limitations on their claims would have run, the estates of the pilot and each of the passengers filed a wrongful death action against the airline in federal court in State A. The airline was served one week later and wants to prevent the State A federal court from hearing the action. Which of the following motions is most likely to accomplish the airline’s goal?
(A) A motion to dismiss the action for improper venue.
(B) A motion to dismiss the action for lack of personal jurisdiction.
(C) A motion to dismiss the action under the doctrine of forum non conveniens.
(D) A motion to transfer the action to a federal court in State C.
(D) A motion to transfer the action to a federal court in State C.
A plaintiff filed an action in federal district court and served the defendant with the summons and complaint. The defendant moved to dismiss the complaint for failure to state a claim. Instead of opposing the motion to dismiss, the plaintiff voluntarily dismissed the action and filed a new action, alleging the same claims but also addressing the pleading defects outlined in the defendant’s motion to dismiss. The defendant then moved to dismiss the second action, and the plaintiff again voluntarily dismissed the second action instead of filing opposition papers. The plaintiff then filed a third action, alleging the same claims but also including additional allegations that were responsive to the defendant’s second motion. The defendant has moved to dismiss the third action; the plaintiff opposes the motion. Is the court likely to grant the defendant’s motion?
(A) No, because the plaintiff has promptly and diligently attempted to address the pleading defects.
(B) No, because the plaintiff voluntarily dismissed each previous action before the defendant filed an answer or moved for summary judgment.
(C) Yes, because the plaintiff failed to seek a court order dismissing the second action.
(D) Yes, because the plaintiff’s previously dismissed actions asserting the same claims operate as an adjudication on the merits.
(D) Yes, because the plaintiff’s previously dismissed actions asserting the same claims operate as an adjudication on the merits.
A retailer brought a federal diversity action against a wholesaler, alleging breach of contract and fraudulent misrepresentation. After the parties presented their evidence at trial, the court instructed the jury on the law. Neither party filed a motion for judgment as a matter of law before the case went to the jury. The jury found for the retailer on both claims. After the court entered judgment on the verdict, the wholesaler moved for a new trial and for judgment as a matter of law, arguing that the evidence was insufficient to support the jury verdict on either claim. The court acknowledged that there had been problems with some of the evidence, but it denied the motions. The wholesaler appealed, challenging the sufficiency of the evidence. Should the appellate court consider the wholesaler’s challenge?
(A) No, because a determination of the sufficiency of the evidence is solely within the jury’s province.
(B) No, because the wholesaler did not raise the sufficiency-of-the-evidence issue in a motion for judgment as a matter of law before the case went to the jury.
(C) Yes, because the challenge was raised and ruled on by the trial court before the wholesaler appealed.
(D) Yes, because, as the trial court acknowledged, the wholesaler has strong arguments on the challenge.
(B) No, because the wholesaler did not raise the sufficiency-of-the-evidence issue in a motion for judgment as a matter of law before the case went to the jury.
An individual investor purchased stock through a company’s stock offering. When the price of the stock plummeted, the investor sued the company in a state court in State A, claiming that the company’s offering materials had fraudulently induced him to purchase the stock and seeking $25,000 in damages. A university that had purchased the company’s stock through the same offering sued the company in federal court in State B, claiming that the offering materials violated federal securities laws and seeking $1 million in damages. The individual investor’s suit proceeded to trial. The state court ruled that the company’s offering materials contained false information and awarded the investor a $25,000 judgment. The university immediately moved for partial summary judgment in its federal action against the company, arguing that the state court judgment bound the federal court on the issue of whether the company’s offering materials contained false information. Neither State A nor State B permits nonmutual issue preclusion. Should the court grant the university’s motion?
(A) No, because State A does not permit nonmutual issue preclusion.
(B) No, because the federal court sits in a state that does not permit nonmutual issue preclusion.
(C) Yes, because federal law permits nonmutual issue preclusion.
(D) Yes, because the issue of whether the materials contained false information was actually litigated and necessarily decided.
(A) No, because State A does not permit nonmutual issue preclusion.
A worker was injured when a machine he was using on the job malfunctioned. The worker brought a federal diversity action against both the machine’s manufacturer and the company responsible for the machine’s maintenance. At trial, the worker submitted a proposed jury instruction on negligence. The court did not accept the proposed instruction and instead gave a negligence instruction that the worker’s attorney believed was less favorable and legally incorrect. The attorney did not object to the negligence instruction before it was given. The jury returned a verdict for the defendants. The worker has moved for a new trial on the ground that the court’s negligence instruction was improper. What argument has the best chance of persuading the court to grant the motion?
(A) Issues of law can be raised at any time.
(B) The court’s negligence instruction was incorrect and the worker’s objection to it was preserved when he submitted his proposed negligence instruction.
(C) The court’s negligence instruction was plain error that affected the worker’s substantial rights.
(D) The need for a formal objection to a judicial ruling in order to preserve an argument has been eliminated in the Federal Rules of Civil Procedure.
(C) The court’s negligence instruction was plain error that affected the worker’s substantial rights.
A retailer brought a federal diversity action against an architect, alleging fraudulent misrepresentations in the architect’s design of the retailer’s store. The complaint did not include a jury demand. The architect timely moved to dismiss the action for failure to state a claim; he did not file an answer. Twenty days after being served with the motion, the retailer amended the complaint to add a defamation claim based on the architect’s recent statements about the retailer in a local newspaper. In the amended complaint, the retailer demanded a jury trial on both claims. Has the retailer properly demanded a jury trial?
(A) No, because the retailer filed the demand more than 14 days after service of the motion to dismiss.
(B) No, because the retailer filed the demand more than 14 days of service of the original complaint.
(C) Yes, but on the defamation claim only, because the original complaint did not contain a jury demand.
(D) Yes, on both claims, because the architect had not answered the original complaint when the retailer filed the amended complaint with the jury demand.
(D) Yes, on both claims, because the architect had not answered the original complaint when the retailer filed the amended complaint with the jury demand.
A pedestrian domiciled in State A was crossing a street in State B when he was hit by a car driven by a citizen of a foreign country. Both the pedestrian and the driver suffered injuries. The pedestrian filed a negligence action against the driver in federal district court in State B, seeking $100,000 in damages. The driver believes that the pedestrian was crossing the street illegally and is therefore responsible for the accident. The driver seeks an attorney’s advice on how best to respond to the action. Assume that State B is a contributory negligence state. How should the attorney advise the driver to respond?
(A) File an answer raising the affirmative defense of contributory negligence and asserting a counterclaim for negligence, seeking damages for the driver’s injuries.
(B) File an answer raising the affirmative defense of contributory negligence and move for judgment on the pleadings.
(C) Move to dismiss for lack of personal jurisdiction, because the driver is not a citizen of State B.
(D) Move to dismiss for lack of subject-matter jurisdiction because the driver is not a U.S. citizen.
(A) File an answer raising the affirmative defense of contributory negligence and asserting a counterclaim for negligence, seeking damages for the driver’s injuries.
A football team entered into a ten-year lease with a city for use of the city’s athletic stadium. Five years into the lease, the team threatened to leave the stadium and move to another city. The city sued the team in federal court, seeking a permanent injunction to prevent the team from breaching its lease and leaving. In its answer, the team included a counterclaim seeking $10 million in damages for losses caused by the city’s alleged failure to properly maintain the stadium, as the lease required. The team demanded a jury trial on the counterclaim. The city moved to try its claim for a permanent injunction before the trial on the team’s counterclaim. The team objected and moved that the jury trial of its counterclaim be held before the trial of the city’s injunction claim. How should the court rule on the parties’ motions?
(A) The court should first hold a jury trial of the team’s counterclaim, and then a nonjury trial of the issues remaining in the city’s claim.
(B) The court should first hold a nonjury trial of the city’s claim without giving binding effect to its findings or conclusions in the later jury trial of the team’s counterclaim.
(C) The court should first hold a nonjury trial of the city’s claim, and then a jury trial of the issues remaining in the team’s counterclaim.
(D) The court should schedule a jury trial of both the city’s claim and the team’s counterclaim.
(A) The court should first hold a jury trial of the team’s counterclaim, and then a nonjury trial of the issues remaining in the city’s claim.
A patient filed a medical malpractice action against a hospital in federal court, alleging that hospital staff had failed to diagnose the patient’s cancer based on an X-ray that had been taken at the hospital. The patient’s cancer was diagnosed six months later, based on the same X-ray, when the patient sought a second opinion. In the interim, the cancer has spread. Fact and expert discovery have been completed in the action. The hospital has moved for summary judgment. In support of its motion, the hospital has submitted a memorandum identifying facts that it claims are not in dispute. It has also cited and attached supporting exhibits, including a report from the hospital’s radiologist, who found no signs of cancer on the X-ray. What is the best way for the patient to raise a genuine dispute of material fact?
(A) Submit a report from the patient’s expert radiologist contradicting the findings in the report of the hospital’s radiologist.
(B) Submit an affidavit from the patient’s attorney detailing his conversations with the patient’s expert radiologist.
(C) Submit an affidavit from the patient’s expert radiologist with findings that contradict the report of the hospital’s radiologist.
(D) Submit the patient’s medical records showing the patient’s current cancer diagnosis.
(C) Submit an affidavit from the patient’s expert radiologist with findings that contradict the report of the hospital’s radiologist.
A shop owner domiciled in State A sued a distributor in a federal district court in State A for breach of a contract. The shop owner sought $100,000 in damages for alleging defective goods that the distributor had provided under the contract. The distributor is incorporated in State B, with its principal place of business in State C. The distributor brought in as a third-party defendant the wholesaler that had provided the goods to the distributor, alleging that the wholesaler had a duty to indemnify the distributor for any damages recovered by the shop owner. The wholesaler is incorporated in State B, with its principal place of business in State A. The wholesaler has asserted a $60,000 counterclaim against the distributor for payment for the goods at issue, and the distributor has moved to dismiss the counterclaim for lack of subject-matter jurisdiction. Should the motion to dismiss be granted?
(A) No, because the wholesaler’s and the distributor’s principal place of business are diverse.
(B) No, because there is supplemental jurisdiction over the wholesaler’s counterclaim.
(C) Yes, because there is no diversity of citizenship between the distributor and the wholesaler.
(D) Yes, because there is no diversity of citizenship between the shop owner and the wholesaler.
(B) No, because there is supplemental jurisdiction over the wholesaler’s counterclaim.
A company incorporated and headquartered in State A used a plumber domiciled in State B in a federal court in State A, alleging that the plumber had negligently installed pipes in a manner that resulted in $250,000 in damage to the company’s headquarters building. In response to the complaint, the plumber filed a motion to dismiss for lack of personal jurisdiction. Thereafter, the plumber did not file an answer or any other response to the company’s action. Sixty days after the court’s order denying the motion to dismiss, the company asked the clerk to enter default, and the clerk did so. The company applied to the court for the entry of default judgment and notified the plumber three days before the default judgment hearing. After an ex parte hearing in which the court received evidence on the damages amount, the court entered a default judgment for the full amount sought. Ten days later, the plumber filed a motion to set aside the default judgment. Is the court likely to grant the plumber’s motion?
(A) No, because the court could fix the amount of damages even without hearing the plumber’s evidence.
(B) No, because the plumber failed to plead or otherwise defend against the company’s action.
(C) Yes, because the plumber was not given adequate notice of the hearing on the company’s application for the entry of a default judgment.
(D) Yes, because the State A federal court lacked personal jurisdiction over the plumber as a State B citizen.
(C) Yes, because the plumber was not given adequate notice of the hearing on the company’s application for the entry of a default judgment.
A bakery incorporate and headquartered in State A had a dispute with a mill incorporated and headquartered in State B over the quality of the flour the mill had delivered to the bakery. The bakery sued the mill in a federal court in State A for breach of contract, seeking $100,000 in damages. The contract between the bakery and the mill contained a clause designating State B courts as the sole venue for litigating disputes arising under the contract. Under precedent of the highest court in State A, forum-selection clauses are unenforceable as against public policy; under U.S. Supreme Court precedent, such clauses are enforceable. The mill has moved to transfer the case to a federal court in State B, citing the forum-selection clause in the parties’ contract and asserting the facts that the flour was produced in State B and that the majority of the likely witnesses are in State B. Is the court likely to grant the mill’s motion?
(A) No, because State A law treats forum-selection clauses as unenforceable.
(B) No, because the mill should have instead filed a motion to dismiss for improper venue.
(C) Yes, because federal common law makes the forum-selection clause controlling.
(D) Yes, because federal law governs transfers of venue, and it would be more convenient for the witnesses and parties to litigate the claim in State B.
(D) Yes, because federal law governs transfers of venue, and it would be more convenient for the witnesses and parties to litigate the claim in State B.
Two days before his home was to be sold at a foreclosure sale, a homeowner obtained a temporary restraining order (TRO) in federal court that prevented his lender from proceeding with the sale for 14 days or until a preliminary injunction hearing could take place, whichever was sooner. When a preliminary injunction hearing could not be scheduled within the original 14-day period, the court extended the TRO for another 30 days. The lender appealed the court’s order extending the TRO. The homeowner has moved to dismiss the appeal. Is the appellate court likely to dismiss the appeal?
(A) No, because a TRO is immediately appealable.
(B) No, because the 30-day extension makes the TRO equivalent to a preliminary injunction and therefore appealable.
(C) Yes, because a TRO is not appealable under the interlocutory appeals statute.
(D) Yes, because there is no final judgment from which an appeal may be made.
(B) No, because the 30-day extension makes the TRO equivalent to a preliminary injunction and therefore appealable.
A man filed a federal diversity action against a bus company, seeking damages for injuries he had sustained in an accident while riding a bus owned by the company. The man demanded a jury trial. After the parties’ attorneys examined the prospective jurors and exercised their challenges, six jurors and two alternate jurors were chosen. During the trial, two jurors became ill and were replaced by the alternate jurors, At the conclusion of the trial, a third juror also became ill, and the court excused that juror. The parties’ attorneys stipulated to the return of a verdict from a five-person jury. The jury then deliberated and returned a verdict for the company. The man timely filed a motion for a new trial, arguing that the five-person jury was not large enough to return a verdict. Should the court grant the motion?
(A) No, because the court properly excused the three jurors due to illness.
(B) No, because the parties stipulated to a verdict from a jury of fewer than six jurors.
(C) Yes, because there must be at least six jurors on a federal civil jury.
(D) Yes, because there must be at least 12 jurors on a federal civil jury.
(B) No, because the parties stipulated to a verdict from a jury of fewer than six jurors.
