Tricky MBE Questions Flashcards
Assuming that a party unsuccessfully moved for JMOL at trial, why should that party move for both RJMOL and a new trial after judgment is entered against it?
By filing for RJMOL and motion for a new trial, the party preserves judgment as a matter of law and new trial for an appeal. This means that if motions for RJMOL and a new trial are denied, the party can appeal and the appellate court, if it agrees with the moving party, can either: send the case back to district court and order judgment for the moving party OR send the case back to district court and order a new trial.
A bus collided with a car. The bus company hired an investigator to prepare a report regarding the accident. The investigation revealed that the bus driver was speeding when the accident occurred. The investigator included this information in his report to the bus company. The driver of the car sued the bus company in federal court, properly invoking the court’s diversity of citizenship jurisdiction. The driver of the car served interrogatories on the bus company, asking whether the bus driver was speeding when the accident occurred. Is the bus driver protected from answering by the work product privilege?
No. Work product protects documents and materials prepared in anticipation of litigation, not the underlying facts in the document itself. Thus, regardless of whether the investigator’s report is work product, the bus company must nonetheless disclose all relevant facts regarding the accident, including the fact that the driver was speeding.
A large sign fell in a store hurting a customer. Knowing almost for sure that the customer would sue the store, the manager gathered all the employees on duty that day and interviewed them about the incident. The manager then prepared a digital document summarizing the interview responses. T/F: the document itself is protected by work product privilege. Why?
True. The document was prepared in anticipation of litigation. The adverse party likely will not be able to demonstrate a substantial need for the document AND an inability to obtain information in an alternative way without undue hardship (because employees are available for deposition).
T/F: a deposition of a witness is admissible for ANY purpose if that witness is unavailable.
True. As long as a witness is unavailable, the deposition may be used at court for ANY purpose.
T/F: a deposition of a party, even if offered by his own attorneys, can be used for any purpose.
False. A party’s deposition may be used ONLY BY the adverse party for any purpose.
A shareholder bought 1,000 shares of a global energy company on August 20. At the time, there were 100,000 shares of the company’s stock outstanding. Unfortunately for the shareholder, on August 21 it came to light that the company’s management was artificially inflating the company’s earnings the past year in order to inflate the company’s stock price. By August 27, the stock was worthless. It is unquestioned that the shareholders who owned the stock during the week of August 21-27 were harmed. The shareholder filed a class action lawsuit in the federal district court. Must she give notice to other absent class members?
The shareholder must give notice to other absent class members. In a “common question” (aka. damages) class action, there are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication. In the instant question, the type of class action appears to be a “common question” class action because the fraud appears to have been inflicted on the class members in the same manner and during the same period of time. Because the class question is of the “common question” variety, notice to all members is required.
A patron at a private park was injured while operating a small boat he rented from the park. The patron subsequently filed a civil tort action against the park in federal district court, seeking to recover compensatory damages for the injury. Prior to trial, the park took the deposition of a witness, another visitor to the park who saw the patron’s accident. The park properly served notice of the deposition on all parties, and all parties were represented at the deposition. The deposition took place in the witness’s home town, which is 140 miles from the park and the court where the action is pending. At the time of trial, the witness is at home, and the park’s attorney seeks to read the witness’s deposition testimony into evidence. The attorney for the plaintiff patron objects to the use of the witness’s deposition. May the park present the deposition into evidence?
The park may present the deposition into evidence because of the witness’s distance from the court. A deposition may be used at trial for any purpose if the deponent is at a distance greater than 100 miles from the place of trial, which is the case here (we treat the witness as unavailable).
The deposition testimony may also be used for impeachment when the deponent is available and testifying live at trial.
A landowner properly brought a diversity action based on a trespass of her land. The complaint alleged that the trespasser came onto the landowner’s land and cut timber from the property. In his answer, the trespasser asserted that the landowner neither had title nor possession of the land and timber. After all the evidence was presented, the trespasser moved for a judgment as a matter of law (“JMOL”), but the motion was denied. The case went to the jury, which returned a verdict for the landowner and a judgment was entered. The trespasser did not renew his motion for a JMOL. However, based on newly discovered evidence, he filed a motion for a new trial. When that motion was denied, the trespasser appealed. On appeal, the appellate court determined that prejudicial error had occurred at trial by allowing the admission of certain evidence to prove title and possession of the land in question. The appellate court found that, without the evidence, the case would not have been submitted to the jury. Based on this finding, what is the proper course of action for the appellate court?
The proper course of action for the appeals court is to remand the case to the district court for a new trial. Procedurally, a party whose motion for a JMOL is denied should file a renewed motion for a JMOL under FRCP 50(b). A party’s failure to make such a motion in the district court precludes an appellate court from directing the district court to enter judgment contrary to the one it had permitted to stand.
A finding of prejudicial error by the appellate court would present a basis for remanding the case to the district court, but it would not provide grounds for a dismissal.
A citizen of State A purchased life insurance by mail from a State B insurance company. The policy was the only one that the company had ever sold in State A. The purchaser mailed premiums from State A to State B for five years, and then died. The insurance company refused to pay the policy benefits. The purchaser’s administrator sued the company in State A state court. The state has a long arm statute that grants a state court in personam jurisdiction over a defendant who “contract[s] to insure any person, property, or risk located within this State at the time of the contracting.” The insurance company argued that its only contact with State A since it began its business was the purchaser’s insurance policy, and that this single contact does not meet the minimum required for the exercise of in personam jurisdiction under International Shoe. How should the court rule on the minimum contacts issue?
The court should rule for the purchaser’s administrator on the minimum contacts issue and exercise in personam jurisdiction over the insurance company. Generally, fewer contacts will suffice for in personam jurisdiction if those contacts are directly related to the cause of action.
Here, even though the sale of the insurance policy constituted only a single contact, it is the contact at issue in the case. Thus, the exercise of jurisdiction would be constitutional.
In exchange for future royalty payments, an inventor sold a developer a license to use the inventor’s patented technology. The inventor and the developer are citizens of different states. A month later, the inventor and developer were in a traffic accident entirely unrelated to their patent licensing transaction. A few months after that, the inventor filed a breach of contract action against the developer seeking $250,000 in royalty payments. The developer then filed two counterclaims, one alleging that the inventor’s licensed product did not work properly and one alleging negligence and seeking $150,000 in damages for injuries sustained in the traffic accident. The inventor was also injured in the accident and believes the developer’s negligence was the cause of the accident. May or must the inventor file a counterclaim against the developer to recover $50,000 in damages he sustained in the accident?
The inventor must file a counterclaim against the developer to recover the $50,000 in damages from the accident. As between the plaintiff and the defendant, any claim that arises from the same transaction or occurrence as a claim asserted against a party is a compulsory counterclaim—even if the party asserting the counterclaim is a plaintiff.
A State A plaintiff filed a breach of contract action against a State B defendant in federal district court, seeking $100,000 in compensatory damages. Three months after the plaintiff filed and served the complaint, the plaintiff and defendant were in an automobile accident. May the State A plaintiff assert a negligence claim against the State B defendant in the pending breach of contract action to recover damages incurred in the automobile accident?
The plaintiff may assert the negligence claim if permitted by the court. The court on motion may permit a plaintiff to file a supplemental pleading that relates to matters occurring after the date of the original pleading. Regardless of whether the claims are factually or legally related, a plaintiff may aggregate all his claims against a single defendant to meet the jurisdictional amount. Since the contract action already exceeds $75,000, the amount in controversy in the negligence action is irrelevant. There is no time limit on when a supplemental pleading can be filed.
A homeowner from State A hired a contractor from State B to build a vacation home for her in State C. The parties signed the contract in State A. The contractor breached the contract, and the homeowner sued the contractor in a court of State A, seeking damages of $100,000. The contractor removed the case to the federal court for State A. The homeowner promptly moved to remand the case to state court, arguing that venue was improper. Will the court grant the homeowner’s motion?
No. The federal court for state A is the only appropriate venue for removal. When a case is removed from state court to federal court, venue is set in the federal district court that embraces the state court in which the action was pending, making the federal district court of State A the only appropriate venue choice.
When PLAINTIFF lays venue, plaintiff may lay venue in a federal court where a substantial part of the claim arose. But, when it is a DEFENDANT removing to federal court, we remove to the federal district embracing the state court where P filed complaint.
A skateboarder from State A collided with a cyclist from State B in a State A park. Both were injured. The skateboarder commenced a negligence action against the cyclist in a State A court. The cyclist raised the defense of contributory negligence, which was a complete defense under State A law. The cyclist did not assert a counterclaim against the skateboarder, as counterclaims were not compulsory under State A’s civil procedure laws. After a trial, the jury returned a special verdict, finding that both the skateboarder and the cyclist were negligent. Based on those findings, the judge entered judgment dismissing the skateboarder’s claim. The skateboarder did not appeal the verdict, and the time to do so expired. Thereafter, the cyclist commenced a negligence action against the skateboarder in the federal court for State A, seeking damages for his injuries in the accident in excess of $75,000. The skateboarder timely raised the defense of contributory negligence. State A follows the same preclusion principles that federal courts follow in federal question cases. What effect should be given to the findings of negligence and contributory negligence in the first action?
In the first action, the jury found that the plaintiff skateboarder was contributorily negligent and that the defendant cyclist was negligent. However, only the finding of the plaintiff skateboarder’s contributory negligence was essential. Therefore, only it has preclusive effect. Issue preclusion prevents a party from re-litigating an issue in a case if that issue was resolved in a prior case. In order for a party to be bound by issue preclusion, (i) there must have been a final judgment in the prior case; (ii) the issue must have been actually litigated and determined; (iii) the issue must have been essential to the judgment; and (iv) the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action. All of these elements are met with respect to the skateboarder’s contributory negligence.
While making deliveries with a company van, an employee of a bakery collided with a bicycle. To recover for his extensive injuries, the cyclist sued the employee in the appropriate federal court. The court granted summary judgment in favor of the cyclist, finding that the employee’s negligence was the sole cause of the collision. Thereafter, the cyclist died. The bakery commenced an action against the cyclist’s estate for damage to the van. The cyclist’s estate moved to dismiss the bakery’s complaint, based on the finding of negligence in the prior action. If the court denies the motion, what is the most likely reason?
The bakery was not a party to the prior action and therefore the cyclist’s estate may not assert issue preclusion against it.
T/F: in determining citizenship for an LLC, the citizenship of both general AND limited partners are considered.
True.
