Pretrial Procedure and Discovery Flashcards
A regular patron of a coffee shop ordered a sugar-free latte every day. One day, a new employee of the coffee shop allegedly served the patron a latte with real sugar. The patron was diabetic and went into diabetic shock after drinking the latte. The patron filed a negligence action in federal court against the coffee shop. The coffee shop filed a motion for summary judgment. The evidence, which was not presented in a form admissible at trial, showed that the new employee had not made a latte with real sugar for the patron. However, it was unclear how the patron had ingested sugar at the coffee shop. The court granted the coffee shop’s motion for summary judgment.
Did the court correctly grant the motion for summary judgment?
No, because the court did not resolve all doubts in favor of the nonmoving party.
Under Rule 56, a motion for summary judgment must be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.
A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party. In ruling on a motion for summary judgment, the court must construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party. Here, the court did not resolve the issue regarding how the patron, the nonmoving party, had ingested sugar at the coffee store in a light most favorable to the patron. Therefore, summary judgment was not proper.
A plaintiff filed a complaint in state court based on a negligence claim arising from an accident. Before the defendant responded to the complaint, the plaintiff voluntarily filed a notice of dismissal. Subsequently, the plaintiff filed a complaint in federal district court based on diversity jurisdiction, asserting the same claim. The defendant filed a motion to dismiss for improper venue, and the court denied this motion. Before the defendant filed an answer to the complaint, the plaintiff again voluntarily filed a notice of dismissal.
Can the plaintiff later pursue this claim through an action filed in federal court?
No, because the second dismissal was with prejudice.
If a plaintiff voluntarily dismissed a prior state or federal action based on the same claim by filing a notice of dismissal, then a subsequent dismissal of the same claim by notice will be with prejudice, and thus has preclusive effect.
This is sometimes referred to as the “two-dismissal” rule.
Without justification, a plaintiff failed to appear for trial in federal district court. The trial had been postponed several times, and the court had warned the parties that failure to proceed would lead to dismissal of the case. Upon the defendant’s motion, the court properly dismissed the case without stating whether the dismissal was with or without prejudice. At the time of dismissal, 130 days had passed since the case was first set for trial.
Is the plaintiff entitled to pursue a new action based on the same claim in federal court?
No, because the plaintiff failed to prosecute his case.
If a plaintiff fails to prosecute his case and, in response to a defendant’s motion, the court dismisses the action, the dismissal is with prejudice and operates as an adjudication on the merits.
A customer properly filed an action in federal district court to compel the bank to recredit the customer’s account for $100,000, the amount of a check that the customer alleged contained a forged drawer’s signature. Fifteen days after discovery concluded in the case, the bank filed a motion for summary judgment. In support of this motion, the bank filed an affidavit by one of its tellers. The affidavit stated that due to the size of the check, the teller had personally verified by phone that the check in question had been signed by the customer when the check was presented for payment. In response, the customer submitted a statement from the transcript of her deposition, conducted by the bank, that she had not signed the check.
How should the court rule on the bank’s motion for summary judgment?
Deny the motion, because there is a genuine dispute as to whether the drawer’s signature is authentic.
With respect to a summary judgment motion, the movant must show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. While the bank has presented evidence that the signature is authentic, the customer has presented evidence that the signature is a forgery.
Consequently, there is a genuine dispute as to whether the drawer’s signature is authentic. This is a material fact that is relevant to whether the bank properly paid the check and whether the bank is required to recredit the customer’s account for the amount of the check. The court must therefore deny the bank’s summary judgment motion.
A truck driver and a car driver were involved in a major collision on an interstate highway. The car driver brought a federal diversity action against the truck driver, seeking to recover damages for injuries sustained. During the course of discovery, the federal court scheduled a pretrial conference to discuss settlement of the action. The court ordered the truck driver and the car driver to be present at the pretrial conference. The car driver failed to appear at the pretrial conference. He later disclosed that he had believed that the pretrial conference was scheduled for a different date.
If the court determines that the car driver should be sanctioned, which of the following is the most appropriate sanction?
Staying further proceedings until the order is obeyed.
The court may require that a party or its representative be present or reasonably available by telephone or by more sophisticated electronic means to consider possible settlement at a pretrial conference. If counsel or a party fails to appear, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order. In this case, the car driver failed to appear at the pretrial conference.
However, this failure to appear was due to a mistaken belief as to the date of the pretrial conference. If the court determines that the car driver should be sanctioned, then the most appropriate sanction would be the least serious of the sanctions listed. Staying further proceedings until the order is obeyed (i.e., staying proceedings until the pretrial settlement conference takes place) is the most appropriate sanction in this case.
An avid bicyclist brought a federal diversity action against a bicycle manufacturer based on strict products liability. The bicyclist sustained significant injuries when a defect in his bicycle’s braking mechanism caused him to crash while competing in a road race. During discovery, the bicycle manufacturer provided the names, addresses, and telephone numbers of all the individuals likely to have discoverable information regarding the manufacture and design of the bicycle’s brakes. Although it possessed a series of emails discussing the construction and manufacture of the braking mechanism that it planned to use in its defense, the bicycle manufacturer failed to provide the emails to the bicyclist. Twenty-one days after the discovery conference, the bicyclist petitioned the court for sanctions against the bicycle manufacturer for failure to disclose the emails.
Should the court grant the bicyclist’s request to sanction the bicycle manufacturer?
No, because the bicyclist did not first serve a motion to compel on the bicycle manufacturer.
Under Rule 37, if a party fails to make the automatic disclosures required by Rule 26(a) or fails to respond to discovery that has been properly served, the party seeking the information may move to compel such disclosure or discovery.
Generally, making a motion to compel is a prerequisite to obtaining any sanctions under Rule 37. In this case, the bicycle manufacturer failed to disclose the emails that it planned to use to support its defense. This information was subject to automatic disclosure under Rule 26(a).
However, the bicyclist did not first serve a motion to compel on the bicycle manufacturer prior to seeking sanctions—a prerequisite to obtaining sanctions under Rule 37. Therefore, the court should not grant the bicyclist’s request.
A plaintiff has brought a breach of contract action against a rancher in federal court under diversity jurisdiction. Before filing her mandatory initial disclosures or conducting any other depositions, the plaintiff subpoenas the rancher’s neighbor, a farmer, for an oral deposition. The rancher has moved to quash the subpoena.
How should the court rule on this motion?
For the rancher, because the plaintiff has not obtained leave of court to depose the farmer.
Rule 30 requires leave of the court to take a deposition before the discovery conference under Rule 26(f). Here, there is no evidence that the discovery conference has occurred. For this reason, the plaintiff cannot depose the farmer at this time.
A farmer purchased a combine to harvest his cornfields. Although the combine appeared to efficiently and safely harvest the corn, the combine, due to a defective design, contaminated the corn with a synthetic lubricant used on some of the combine’s moving parts. The harvested corn was primarily used to feed cows on a nearby dairy farm. As a result of eating the contaminated corn, the cows became severely ill and were euthanized. Both farmers are now suing the manufacturer of the combine under a products liability theory in federal district court based on diversity. Prior to trial, the attorney for the farmers conducted oral depositions of 12 employees of the manufacturer. Some of these depositions occurred before the attorney had complied with the initial trial disclosure requirements. Due to some conflicting testimony as a result of the initial 12 depositions, the attorney deposed three of the employees directly involved with designing the combine a second time. The manufacturer has objected to the attorney’s actions.
Which of the attorney’s actions require leave of the court?
All three of the attorney’s actions in deposing the manufacturer’s employees.
Under Rule 30, a party may take the deposition of any party or nonparty witness at any time after the party has made its mandatory initial disclosures pursuant to Rule 26(a). Without leave of the court, the plaintiffs and the defendants, each as a group, are limited to 10 depositions by oral or written examination. Unless the parties agree to the deposition, leave of the court must be obtained to (i) exceed the 10-deposition limitation, (ii) depose a witness a second time, or (iii) depose a person before the deposing party has complied with its initial disclosure requirements under Rule 26(a).
The plaintiff, a State N citizen, properly invokes a State M federal court’s diversity jurisdiction in a tort suit against the defendant, an airplane manufacturer based in State M. The plaintiff credibly alleges that he was severely injured when the defendant’s airplane crashed as a result of an improperly installed engine part. During discovery, the plaintiff learns that an employee of the defendant who installed engine parts at the time the plane was manufactured was an alcoholic whose drinking may have impaired his work. The defendant fired the employee before the plane crash that injured the plaintiff.
What discovery device may the plaintiff use to obtain more information from the former employee?
An oral deposition.
A plaintiff may take an oral deposition of a nonparty witness, such as the former employee, as long as the nonparty is properly subpoenaed. By contrast, all of the other devices listed (interrogatories, physical exams, and requests for admission) can be used only against a party.
Because the former employee no longer works for the defendant, these devices cannot be used to obtain information from him.
A plaintiff sued a defendant for personal injuries resulting from negligence in a federal district court sitting in diversity jurisdiction. The plaintiff alleged that she had been crossing at a crosswalk when the defendant ran a red light at an intersection and hit her with his truck, causing injuries. Without any showing of good cause other than the need to verify the plaintiff’s injuries, the defendant filed a motion to compel the plaintiff to submit to a physical examination. The plaintiff has opposed the examination as intrusive.
How should the court rule on the defendant’s motion?
Grant the motion, because the plaintiff has placed her physical condition into issue.
Although a physical examination may be ordered only for “good cause,” the plaintiff here has placed her physical condition into controversy by claiming personal injury damages, which is sufficient “good cause” for the court to order a physical examination.
A plaintiff filed a claim against a defendant corporation in federal district court sitting in diversity jurisdiction, alleging negligence in the design of an automobile manufactured by the defendant. The plaintiff asserted that, when she was driving the automobile on a highway, the steering mechanism failed, causing her injuries. On April 1, the defendant served a request for admission on the plaintiff, asking the plaintiff to admit that at the time of the accident she was driving in excess of the posted speed limit. As of May 2, the plaintiff had not served any written answer to the defendant’s request for admission.
How will the court treat the defendant’s April 1 request for admission?
The matter in the defendant’s request for admission is deemed admitted.
Under Rule 36, a party may serve upon any other party a written request for the admission of any relevant, non-privileged matters discoverable under Rule 26.
A matter will be admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney. Here, the plaintiff failed to serve a written answer or objection to the request for admission.
More than 30 days have passed since the time the request for admission was served on April 1. Therefore, the matter is admitted pursuant to Rule 36.
