Quiz 7 Flashcards
1
Rosemary Thyme Restaurant, a nationwide chain, was sued in federal court by a former female server for sexual harassment under federal law. Mid-way through discovery, the court set a pre-trial conference for purposes of exploring settlement, as provided by Rule 16(a)(5). In its scheduling order for the conference, the court ordered the restaurant to bring a company representative with ultimate authority to settle the case. On the day of the conference, the restaurant’s attorney brought a senior vice president. After meeting with both sides, the court strongly encouraged the restaurant to consider settling immediately. The senior vice president replied, “I don’t have the authority to consider that—only the CEO does.” When the court asked to get the CEO on the phone, the restaurant’s attorney responded that the CEO was out of the country and unreachable. The court then issued an order barring the restaurant from presenting evidence on its affirmative defense at trial. Which of the following is an accurate statement about this sanction?
(A)
The court exceeded its Rule 16 authority, because it cannot require any particular party representative to be available for a settlement conference.
(B)
The court exceeded its Rule 16 authority, because barring an affirmative defense is not a permissible sanction under that rule.
(C)
The court’s sanction barring Rosemary Thyme’s affirmative defense is both permissible and required.
(D)
The court’s sanction barring Rosemary Thyme’s affirmative defense is permissible but just one option within the court’s discretion.
D is correct. Rule 16(c)(1) states that the court “may require that a party or its representative be present or reasonably available by other means to consider a possible settlement.” By bringing a senior vice president who had no authority to consider settling and failing to make available the CEO with such authority, Rosemary Thyme disobeyed the court’s scheduling order. Rule 16(f)(1) states that the court may, on its own, issue “any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party …fails to obey a scheduling order.” Rule 37(b)(2)(A)(ii) authorizes the sanction of barring a defense. A is incorrect because Rule 16(c)(1) explicitly permits the court to require attendance from a person with authority to consider settlement. B is incorrect because Rule 16 gives the court the authority to issue this sanction for this violation of its order. C is incorrect because the “court may” language in Rule 16(f) gives the court the discretion to determine whether a sanction is appropriate, and if so, which one.
- Shareholders of Reinhart, Inc. sued the company in federal court for federal securities fraud. Reinhart filed a motion to dismiss the shareholders’ complaint under Rule 12(b)(6). Sixty days after Reinhart filed its 12(b)(6) motion, the court granted the motion, but did so without prejudice, and gave the shareholders leave to amend. In its initial scheduling order, issued before the court’s 12(b)(6) ruling, the court stated that the parties must file any amended pleading within 30 days following a ruling on a motion to dismiss or a motion to strike. The shareholders filed an amended complaint 28 days after the court’s 12(b)(6) ruling. Reinhart filed a motion to strike the amended complaint, contending that it failed to comply with Rule 15(a)(1)(B), which sets a 21-day deadline for amending a pleading as a matter of course following the service of a responsive pleading. How should the court rule on Reinhart’s motion to strike?
(A)
The court should grant Reinhart’s motion, because Rule 15(a)(1)(B)’s 21-day deadline applies.
(B)
The court should deny Reinhart’s motion, because the scheduling order’s 30-day deadline applies.
(C)
The court should deny Reinhart’s motion, because the shareholders expressly requested the court’s permission to amend.
(D)
The court should grant Reinhart’s motion, because Rule 16 does not give the court power to set deadlines for amending pleadings.
B is correct. Rule 16(b)(3)(A) requires the court’s scheduling order to limit the time to amend pleadings. Here, the court’s order required amended pleadings to be filed within 30 days of the court’s ruling on a motion to dismiss or a motion to strike. Along with the court’s 12(b)(6) ruling, this order gave the shareholders automatic leave to file an amended complaint, provided that filing occurred within 30 days of the court’s 12(b)(6) ruling. Here, the shareholders met that deadline by amending within 28 days. A is incorrect because Rule 15(a)(1)(B) doesn’t apply here. The shareholders were not amending as a matter of course but rather in response to the court’s scheduling order timeline and its 12(b)(6) ruling granting leave to amend. C is incorrect because the shareholders did not ask the court’s permission and did not need to. The court granted permission on its own by virtue of its scheduling order and the 12(b)(6) ruling. D is incorrect because Rule 16(b)(3)(A) not only empowers the court to set amendment deadlines, it requires the court to do so.
3.
Plaintiff is a member of the City Council in Clearwater, California. Defendant is a newspaper editor who lives and works in Washington and covers west coast politics. During Plaintiff’s most recent electoral campaign, Defendant published an article about Plaintiff that stated, “Plaintiff’s campaign is built on a pack of lies. He says he graduated from law school, but he never made it through kindergarten.” Plaintiff filed a lawsuit in federal district court in Washington alleging libel, where the burden at trial is on the Plaintiff to prove by clear and convincing evidence that, inter alia, Defendant acted with actual malice. The complaint survived a motion to dismiss and, after discovery, Defendant moved for summary judgment.
What standard will the district court use to determine whether there is a genuine dispute as to any material fact?
(A)
The court will determine whether there is sufficient evidence under the preponderance of the evidence standard to establish a genuine dispute that Defendant acted with actual malice.
(B)
The court will determine whether there is sufficient evidence under the clear and convincing evidence standard to establish a genuine dispute that Defendant acted with actual malice.
(C)
The court will determine whether the allegations of the complaint plausibly show that Defendant acted with actual malice.
(D)
The court is barred by the Seventh Amendment from determining Defendant’s state of mind.
(B) is the correct answer because it properly recognizes that the substantive evidentiary standard applied to a motion for summary judgment is the same as the trial burden. Under the federal rule, a motion for summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” FRCP 56(a). On such a motion, the question “is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that the he did not.” Anderson v. Liberty Lobby, 477 U.S. 242, 254 (1986) (emphasis in original). The evidentiary burden in libel cases is that of clear and convincing evidence, and a showing of actual malice is a material issue of fact. If Defendant shows by clear and convincing evidence that he did not act with actual malice, it follows that no rational finder of fact could find the inverse—that Defendant did act with actual malice by clear and convincing evidence and there would be no genuine dispute as to this material fact.
4.
Plaintiff is a private gaming company. Defendant is a municipality that licenses gaming companies. Company is a competitor gaming company. Plaintiff sued Defendant and Company for federal antitrust violations alleging that the defendants conspired to monopolize trade in the gaming industry. Plaintiff’s complaint joined the federal antitrust claim with a state tort claim alleging intentional interference with prospective business advantage. After the defendants answered the complaint, Plaintiff filed a notice of dismissal of the state tort claim against Defendant with prejudice. Plaintiff also filed a notice of dismissal of the state tort claim against Company, without stating whether the dismissal was with prejudice. The district court ordered both claims dismissed with prejudice.
On review, would an appeals court find that the district court abused its discretion when it dismissed the claim against Company with prejudice?
(A)
Yes, because the federal rule explicitly states that a voluntary dismissal is without prejudice.
(B)
No, because the court had discretion to dismiss the claim with prejudice.
(C)
Yes, because once Plaintiff filed its notice of dismissal, the court was without jurisdiction.
(D)
No, because the dismissal would be reviewed under the “clearly erroneous” and not the “abuse of discretion” standard.
B is correct because under FRCP 41(a)(2), the dismissal of an action by order of the court can be with prejudice or without prejudice, and the decision is within the court’s discretion. On the facts presented, Plaintiff failed to state whether the voluntary dismissal that she sought was with prejudice or not. Under these circumstances it has been held that it is not an abuse of discretion if the court orders dismissal with prejudice. Indeed, some courts hold that it is not an abuse of discretion if the court orders the dismissal with prejudice without giving notice of its intention to the plaintiff and without giving the plaintiff an opportunity to withdraw the request. See U.S. ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 809-811 (10th Cir. 2002); but see Michigan Surgery Inv., LLC v. Arman, 627 F.3d 572, 576-577 (10th Cir. 2010) (abuse of discretion not to provide notice and an opportunity to withdraw the request for dismissal). In considering whether a court has abused its discretion in dismissing without prejudice, some courts consider whether the defendant “would suffer some plain legal prejudice other than the mere prospect of a second lawsuit,” see Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947). Other courts consider multiple factors “including (1) the plaintiff’s diligence in bringing the motion, (2) any undue vexatiousness on the plaintiff’s part, (3) the extent to which the suit has progressed, including the defendant’s efforts and expense in preparation for trial, (4) the duplicative expense of re-litigation, and (5) the adequacy of the plaintiff’s explanation for the need to dismiss.” See D’Alto v. Dahon California, Inc., 100 F.3d 281, 283 (2d Cir.1996). On the facts presented here, it cannot be said with certainty that the district court abused its discretion, and B is the best of the four answers.
- Plaintiff brought a breach of contract action against Defendant in federal court on the basis of diversity jurisdiction. The case survived summary judgment, and was tried before a jury. At the close of Plaintiff’s case, Defendant proceeded to present three witnesses. The jury found in favor of Plaintiff. Sixty days after entry of judgment, Defendant moves for judgment as a matter of law under FRCP 50(b).
Can the trial judge grant Defendant’s motion?
(A)
The trial judge can grant the motion, if he agrees that there was insufficient evidence for the jury to find in favor of Plaintiff.
(B)
The trial judge cannot grant the motion, because Defendant failed to make a motion for judgment as a matter of law before the case was submitted to the jury.
(C)
The trial judge cannot grant the motion, because Defendant failed to object to the substance of two of the five jury instructions.
(D)
The trial judge can grant the motion, because it is timely.
(B) is correct because it recognizes that a motion for judgment as a matter of law [notwithstanding the verdict] (JNOV) under FRCP 50(b) is essentially a renewal of a motion for a judgment made pre-verdict and cannot be made unless the pre-verdict motion under FRCP 50(a) was made. Indeed, the motion JNOV generally may include only those issues included in the earlier motion. The rule provides that “[i]f the court does not grant a motion for judgment as a matter of law made under Rule 50(a) … the movant may file a renewed motion…” On the facts presented Defendant failed to make a motion before the case was submitted to the jury and therefore cannot move for judgment notwithstanding the verdict. Courts “strictly construe the procedural requirement of filing a Rule 50(a) motion before filing a Rule 50(b) motion.” Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075, 1081 (9th Cir. 2009). This requirement applies despite 2006 amendments to FRCP 50 that the motion for judgment as a matter of law need not be made at the close of evidence; the motion still must be made before the judge submits the case to the jury. The note to the 2006 Amendments states, in pertinent part: “Rule 50(b) is amended to permit renewal of any Rule 50(a) motion for judgment as a matter of law, deleting the requirement that a motion be made at the close of all the evidence. Because the Rule 50(b) motion is only a renewal of the pre-verdict motion, it can be granted only on grounds advanced in the pre-verdict motion…” Under these circumstances, Defendant has forfeited the opportunity to move JNOV. However, if the evidence does not support the verdict, the court may order a new trial; FRCP 59, which governs motions for a new trial, does not require the making of a pre-verdict motion. See Pediatrix Screening, Inc. v. Telechem Intern., Inc., 602 F.3d 541, 546 (3d Cir. 2010).
6.
Plaintiff is a photographer. He lends 20 of his photographs to Defendant, the administrator of a museum, to be featured in an upcoming exhibit. Plaintiff’s contract with Defendant provides, “Museum agrees to return all photographs in a timely way and in the same condition in which they are received.” After the exhibit ends, Defendant packs up the photographs and mistakenly puts the boxed photographs in a recycling bin, where they are compressed beyond recognition. Plaintiff sues Defendant in federal court for breach of contract, based on diversity jurisdiction, and seeks to recover the market value of his photographs. The evidence presented to the jury shows that none of Plaintiff’s photographs has ever sold for more than $5,000 a print. The jury returns a verdict of $1 million. The judge agrees that Defendant ought to be held liable, but believes that the jury’s award reflects an arithmetic error and that the damages were intended to be $100,000.
After judgment is entered on the jury’s verdict for Plaintiff, Defendant moves for judgment as a matter of law. What is the best way for the judge to proceed?
(A)
The judge should grant the motion.
(B)
The judge on her own initiative should conditionally order a new trial unless Plaintiff agrees to a reduction of the damages to an amount set by the court.
(C)
The judge on her own initiative should order a new trial on the issue of damages only.
(D)
The judge should deny the motion and must accept the jury’s damage award as a matter of the Seventh Amendment.
(B) is the correct answer because the district judge has discretion, on her own initiative, to order a new trial “for any reason that would justify granting one on a party’s motion,” FRCP 59(d), and these reasons include that the verdict was “against the weight of the evidence.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433 (1996). Moreover, the district judge may enter a conditional order of remittitur, “compelling a plaintiff to choose between reduction of an excessive verdict and a new trial.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 165 (2d Cir. 1998). Two circumstances warranting such an action by the district judge include: (1) “where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken”; and (2) “where the award is intrinsically excessive in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error.” Id. Because the district judge here believes the jury’s award simply reflects an arithmetic error, similar to the first circumstance described in Kirsch, then the judge should use her authority to order a new trial unless Plaintiff agrees to the reduction in damages.
- Zelda Chen sued Abel Teferi for negligence in a federal diversity case after their cars collided and Chen suffered severe injuries. Instructing the jury at the close of the case, the judge stated: (1) “if you find that the defendant was a contributing cause of the plaintiff’s injuries, you must award full damages”; and (2) “if you find that the defendant was a contributing cause of the plaintiff’s injuries, but that plaintiff’s own negligence also contributed to her injuries, then you must reduce the damages in proportion to the plaintiff’s negligence.” The jury returned a $1 million verdict for Chen, but the verdict did not reveal which instruction the jury followed. Teferi did not raise any objections to the jury instructions at the jury charge conference held by the judge. If Teferi files a Rule 59 motion for a new trial challenging the jury instructions as internally inconsistent, how should the court rule?
(A)
The court should deny Teferi’s motion, because it is not an error for the judge to give inconsistent jury instructions.
(B)
The court should grant Teferi’s motion, because Teferi never had a chance to object to the instructions.
(C)
The court should deny Teferi’s motion, because Teferi did not raise a timely objection to the instructions.
(D)
The court should grant Teferi’s motion, because the judge committed a procedural error by giving internally inconsistent jury instructions.
Rationale:
C is correct. Rule 51(b) requires the court to give parties an opportunity to object to jury instructions on the record before the jury hears them, and Rule 51(c)(1) requires a party to lodge any objections at that time, “on the record, stating distinctly the matter objected to and the grounds for the objection.” Here, the court held a jury charge conference, giving the parties an opportunity to object to proposed instructions, but Teferi did not object at that time. Raising a jury instruction issue for the first time in a post-trial motion is too late. A is incorrect because instructional inconsistency is a valid objection; inconsistent instructions can cause juror confusion and impact the verdict. B is incorrect because the charge conference gave Teferi a chance to object. D is incorrect. Even though jury instruction defects can be raised in Rule 59 motions, the motion must be preceded by a timely objection on the record before the jury is instructed, as Rule 51 requires.
