Civil Procedure Review Questions

Directed Verdict/JNOV Motions

1. Hagrid brings an action against Potter for infringement of a copyright Hagrid holds on a
book about breeding dragons. The case is tried to a jury. Potter moves for a directed
verdict at the close of Hagrids evidence. The judge denies the motion. Potter renews the
motion after presenting his own evidence. The motion is denied again. The jury is
instructed, deliberates, and returns a verdict for Hagrid. May Potter move for a JNOV?

2. Assume, as in example 1, Potter moves for a directed verdict at the close of Hagrids
evidence but does not renew his motion after presenting his own evidence. The jury is
instructed, deliberates, and returns a verdict for Hagrid. May Potter move for a JNOV?

3. Hagrid sues Potter, alleging that Potters negligence caused Hagrid personal injuries.
Potter denied the allegations in his complaint and raised the affirmative defense of
contributory negligence. Assume that in this jurisdiction contributory negligence must be
proved by the defendant and is a complete bar to any recovery by the plaintiff.

a. At the trial of Hagrid v. Potter

1. Hagrid has the burden of production and the burden of persuasion on all
elements of his cause of action.

2. Hagrid has the burden of production initially, but it shifts to Potter after
Hagrid puts on legally sufficient evidence of each element of his claim. The
burden of persuasion remains on Hagrid.

3. Hagrid has the burdens of production and persuasion initially, but both shift to
Potter after Hagrid puts on his case in chief.

4. Because he has raised the affirmative defense of contributory negligence,

Potter has the burdens of production and persuasion throughout the case to
show that Hagrid was negligent and he was not.

b. At the trial of Hagrid v. Potter

1. Hagrids failure to prove the elements of his claim by a preponderance of the

evidence could result in the judge entering a directed verdict for Potter before
the case goes to jury.

2. Hagrids failure to produce evidence on which a reasonable jury could find for
Hagrid could result in the judge entering a directed verdict for Potter before
the case goes to the jury.

3. Hagrids right to a jury trial under the 7th Amendment means that his case
must be permitted to go to the jury even if he fails to meet his burden of
 production.

4. If Hagrid produces evidence in his case in chief demonstrating that no

reasonable jury could fail to find for Hagrid, it is irrelevant what evidence
Potter might have; the judge could grant a directed verdict for Hagrid before
the case goes to the jury.

c. At a trial of Hagrid v. Potter

1. Potter would have the burden of production and the burden of persuasion on
the elements of his affirmative defense.

2. Potter would have the burden of persuasion but not the burden of production
on all elements of his affirmative defense.

3. Potter would have the burden of persuasion and the burden of production on at
least one element of his affirmative defense.

4. Potter would have the burden of production but not the burden of persuasion
on all elements of his affirmative defense.

Summary Judgment Problems

Professor Goldberg is leaving the law school and making a left onto North Broadway in White
Plains. Professor Fentiman is entering the law school from North Broadway and hits Professor
Goldbergs car. Professor Goldberg brings an action in federal court against Fentiman, alleging
that Fentiman negligently ran a red light, resulting in damages to Professor Goldberg. Assume
that subject matter jurisdiction is proper. Each hypo involves the case of Goldberg v. Fentiman.

1) Fentiman moves for summary judgment. In support of her motion she attaches an affidavit in
which she asserts that she did not run the red light and hit Goldberg. Goldberg opposes the
motion by asserting that the complaint signed by his attorney states that Fentiman hit
Goldberg. Should the motion be granted?

2) Fentiman moves for summary judgment. In support of her motion she attaches an affidavit in
which she asserts that she did not run the red light and hit Goldberg. The attorney for Goldberg
opposes the motion by filing an affidavit in which Goldberg swears that Fentiman ran the red
light, and hit him. Should the motion be granted?

3) Fentiman moves for summary judgment. In support of her motion she cites a deposition of
Goldberg in which Goldberg admits that he is not sure who ran the red light. The attorney for
Goldberg opposes the motion by filing an affidavit from John Witness who swears that he saw
Fentiman run the red light on the date and time in question, and hit Goldberg. Should the motion
be granted?
4) Goldberg moves for partial summary judgment. In support of his motion he attaches an
affidavit in which he asserts that Fentiman ran the red light on the date and time in question, and
hit him. The attorney for Fentiman opposes the motion by filing an affidavit in which Fentiman
denies running the red light and hitting Goldberg on the time and date in question. Should the
motion be granted?

5) Fentiman moves for summary judgment and in support of her motion says, Since I do not
have the burden of proof, I am entitled to summary judgment unless Goldberg can demonstrate
that there is a genuine issue of material fact. Should the motion be granted on this basis?

JOINDER PROBLEMS

Peter, Donald, and Mark met to try to finalize the formation of a joint venture to obtain a Mini
Cooper dealership for New Britain, Connecticut. Unfortunately, the meeting went from bad to
worse, with all of the parties blaming the others for the collapse of the deal. Donald and Mark
stormed out immediately, heading for their cars while still fuming about the meeting. Peter
followed several minutes later, still preoccupied over what he saw as the lack of vision of his
business partners. No one is quite sure what happened next, but the result was a serious accident
in the parking lot in which Peter, while walking to his car, was caught between Mark and
Donalds cars as they collided. Peter was seriously injured. Donald and Mark escaped without
physical injury, but both suffered significant damage to their cars.

Because of a longstanding business relationship, Peter does not want to sue Donald for breach of
contract, and Donald does not want to sue Peter for breach of contract. Peter does, however, sue
Donald for his injuries, claiming that Donald was driving negligently, causing the accident. The
suit is filed in federal court based on diversity jurisdiction. (Peter is from Connecticut, Donald
from Delaware, and Mark is from Maine).

1. Donald wants to bring Mark into this lawsuit. What procedural vehicles could he use?

2. Donald decided to use Rule 14 to bring Mark into the lawsuit, alleging that Mark drove
negligently and requesting contribution and indemnity. Can Donald also add a claim against
Mark for negligence to seek damages for the damage to Donalds car?

3. Assume that Donald used Rule 14 to bring Mark into the lawsuit. Can he add a claim for
breach of contract?

4. Assume that Donald used Rule 14 to bring Mark into the lawsuit. Mark in turn has filed a
claim against Peter for negligence. Can Mark bring a claim against Peter for breach of contract?

5. Assume that Donald filed a counterclaim against Peter for negligence, claiming that Peter
dashed out from between parked cars and caused the accident. Can he use that counterclaim to
bring a breach of contract claim against Mark?
Practice Exam Question 3

a) Larry and Lila Taylor are lawyers. After graduation, they both began practice in the fictional
state of Pace. After she became a partner at her law firm, Lila had a baby son, Tim. Both
parents were thrilled with the child, and both reduced their billable hours in order to spend more
time with him. Concerned about quality child care, the Taylors contacted Nanny Nation, a
respected national agency that trains and recruits child care providers from throughout the United
States and the world, providing those nannies to families all over the United States. Through
Nanny Nation, the Taylors hired Shelley Jelinsky, a twenty-two year old British citizen, to live in
their home, do light housework and cooking, and care for Tim while they were at work.

About a month later, tragedy struck. Shelley picked up Tim from Gymboree and was driving
him home. Unfortunately, Shelley had succumbed to homesickness for the local pub and had
three beers before getting Tim. On the way home they were involved in a serious traffic
accident. Shelley suffered only superficial injuries, but Tim received significant head and neck
injuries (despite the fact that he was firmly and correctly placed in his car seat). The Taylors
fired Shelley, and she returned home to England.

Tim has recovered from most of his injuries, although the doctors continue to watch for signs of
permanent brain damage. The Taylors have paid substantial medical bills for his treatment, and
have lost income while tending to his psychological and medical needs. They have suffered
from mental anguish, watching Tim suffer from his injuries. They no longer feel comfortable
leaving Tim with anyone other than a family member, and so Larry has retired from practice and
takes care of Tim full time. They sue Nanny Nation for damages, and the case ends up in federal
court (in the Eastern District of Pace) on diversity grounds.

Taylor v. Nanny Nation is now entering the discovery phase. The Eastern District of
Pace has opted out of the automatic disclosure rules, so the parties will use formal discovery
from the beginning. Right now, the Taylors and Nanny Nation are the only parties to the suit,
and the only claims are for negligence and fraud. (All other claims have been abandoned or
resolved by the parties and eliminated from the lawsuit.) The Taylors claim various categories of
damages for both parents and for Tim.

A number of issues have arisen during discovery. First, Lila Taylor is seeking
damages for mental anguish, alleging that caring for her injured infant has caused her great
distress. Such damages are theoretically recoverable under applicable tort law. Nanny Nation
has learned that while she was in law school, Lila saw a therapist and was treated briefly for
depression. Nanny Nation has sent the Taylors a Request for Production of Documents seeking
the therapists records.

Second, Nanny Nation is skeptical of Larry Taylors lost income claim. They think
that his practice in Pace was speculative from the beginning and already doomed to failure
before Tims injury. It therefore has requested production of any and all documents evidencing
the past and potential income from and expenses of Larry Taylors law practice from the time
he began practicing through the present. This would include both law firm financial statements
and individual client files and billing records.

A third discovery dispute surrounds the Nanny Nation Claims Manual. Nanny Nation
was aware of the potential problems that could arise if it chose its nannies poorly. It was
concerned about its potential liability, about possible harm to its clients children, and about
damage to its business reputation. Therefore, about a year before the Taylors first contacted
them, Nanny Nations executive director Mary Poppins instructed Tully Alford, the companys
general counsel, to draft a manual regarding claims procedure and he did so. The claims manual
discusses the applicable law, the proper procedure for talking to clients with complaints, the
proper response to discovery requests, and the companys strategy for defending lawsuits against
it. Ten copies of the manual have been made. They were distributed to the President, Marketing
Manager, Human Resources Director, Training Manager, Nanny Placement Director, and the
companys five telephone operators. All are marked CONFIDENTIAL - KEEP IN A LOCKED
DRAWER on the cover. The Taylors have requested production of the manual, and Nanny
Nation has objected to its production.

You are an associate at the law firm representing the Taylors, and the partner you work
for wants a memo. Shes asked you to explain both the arguments in favor of the Taylor
familys positions and the weaknesses of those arguments. Shes particularly insistent that you
address the following issues:

1) whether Lila Taylor can avoid the disclosure of her therapists records;

2) how much of Larry Taylors law firm financial information, if any, he is likely to be
required to produce; and

3) whether the Taylors should file a motion to compel production of Nanny Nations
claims manual.

Question Two

Taylor v. Nanny Nation has been pending for six months. Nanny Nation has just filed
a motion for summary judgment. It argues that the Taylors will be unable to prove two required
elements of its case:

1) that Nanny Nation knew or should have known that Shelley had a drinking
problem; and

2) that Shelleys intoxication was the cause of the crash that injured Tim Taylor.

Nanny Nation supports its motion with three affidavits. First, it attaches the affidavit
of Amanda Buckham, Shelleys best friend from school, stating that although Shelley liked to go
to the pub as much as any English teenager, she did not have a drinking problem. Second, it
includes the affidavit of Ronald Reed, an employee of Nanny Nation, stating that he had
investigated Shelleys background by checking for a criminal record (finding none) and by
talking to Amanda, whom Shelley had listed as a reference. Ronalds affidavit further states that
nothing he found led him to believe that Shelley had a drinking problem. Third, Nanny Nation
relies on the affidavit of Vincent Vida, accident reconstruction expert, stating his credentials and
opining that the accident that injured Tim Taylor would have happened even if Shelley had not
been intoxicated. It is Vidas opinion that the driver of the other vehicle changed lanes so
unexpectedly that Shelley could not have avoided a collision even if she had been perfectly
sober. Vida has an engineering degree and has been certified as an expert in accident
reconstruction by the NSRE (National Society of Reconstruction Experts).

Your partner has been very impressed by your work on the Taylor case, and so she has
asked you to look at the summary judgment motion and accompanying papers. She wants to
know if a response is necessary, what the response should contain, and what else, if anything,
should be done. In making your recommendation, assume that you have access to the following
material:

The memo. This is an undated memo to the file, produced by Nanny Nation during
discovery, listing possible references for Shelley Jelinsky. It lists three names, of which Amanda
Buckmans is one. There is a check by Amandas name and by one other.

The phone call. One of the other names (not checked) is Becky Martin. You have
called Becky on the phone. She told you that Shelley was a wild teenager who got drunk at least
weekly, although she was becoming more mature with age. She further told you that no one from
Nanny Nation ever called her, but that she would have shared the same information with them
had they called. Since Becky lives in a small English village you have not yet been able to take
her deposition or get her to sign an affidavit, but she would be willing to cooperate with you
given more time. You have not managed to locate the other person listed in the memo. Becky
thinks that the other person got married and moved to somewhere in Australia.

The deposition. The transcript of Vincents deposition indicates that he based his
opinion solely on Shelleys version of the circumstances surrounding the accident. He has not
interviewed the other driver. He was not able to inspect the crash scene (he was hired long after
it was gone, and there is no police report), nor did he inspect the vehicles involved in the crash
before they were repaired.

Please write a memo to the partner. Advise her what the Taylors should do in response
to the motion for summary judgment. Include any questions you need answered about discovery
in the case to date. She also wants you to predict how the judge will ultimately rule on the
motion.

SUMMARY JUDGMENT REVIEW QUESTION

1) Pam, a patient injured in a nursing home fire, brought a suit for $77,000 against the Homes
operators, Home, Inc. in the United States District Court in the Eastern District of New York,
where the nursing home in which Pam resides is located. Jurisdiction was properly based on
diversity of citizenship because even though Pam resides in New York, she is domiciled in New
Jersey. Under the law of New York, the failure of a nursing home to install smoke detectors in
each patients room is considered to be negligence per se. Plaintiff alleged in her complaint that
Defendant failed to install a smoke detector in her room. Defendant answered, denying all the
allegations in the complaint.

Pam moved for summary judgment as to liability, attaching her own sworn affidavit stating that
no smoke detector had been installed in her room. The Defendants attorney responded with a
memorandum asserting, My client stands by its Answer in this case. The Court denied the
motion.

Was the district court correct in its ruling? Discuss.

QUESTIONS ON PLEADINGS

Assume that all of these questions take place in federal court and that the federal rules of
civil procedure apply. You may look at your rule book while answering the
questions. Answer each question thoroughly in the space provided. Make sure that you
give the answer, the specific rule that applies, what that rules says, and how the rule applies
to the facts set out in the question.

1. Wilma filed a complaint against Fred and process was served on Day 1. On Day 4, prior to
his answer, Fred filed a motion under 12(b)(1) to dismiss for lack of jurisdiction over the subject
matter. The following day, Fred filed a motion under 12(b)(3) to dismiss for improper
venue. Wilma opposed Freds second motion on the grounds that he waived his venue
defense. How should the court rule on Freds second motion?

2. Wilma filed a complaint against Fred and process was served on Day 1. On Day 4, prior to
his answer, Fred filed a motion under rule 12(b)(2) to dismiss for lack of jurisdiction over the
person. The next day, Fred filed a motion under Rule 12(b)(1) to dismiss for lack of subject
matter jurisdiction. Wilma opposed Freds second motion on the grounds that he waived his
defense of lack of subject matter jurisdiction. How should the court rule on Freds second
motion?

3. Wilma filed a complaint against Fred and process was served on Day 1. Fred filed an answer
on Day 10 in which, in addition to responding to allegations in Wilmas complaint, he raised the
defenses of lack of jurisdiction over the person, lack of jurisdiction over the subject matter,
failure to state a claim upon which relief may be granted, improper venue, and expiration of the
statute of limitations. Wilma moves to strike, arguing that Fred has waived all of these
defenses. How should the court rule?

4. Wilma filed a complaint against Fred and process was served on Day 1. On Day 10,
Fred served and filed an answer that denied all the material allegations of Wilmas
complaint and raised the defenses of lack of subject matter jurisdiction and contributory
negligence. Neither the parties nor the court took any further action until Day 25, when
Fred attempted to amend his answer to include the defense of improper venue. Wilma
moved to strike, arguing that the amendment was improper and that Fred waived the defense
of improper venue. How should the court rule?

5. Please review the following complaint and assess whether it is fully satisfactory. The caption,
the jurisdictional requirement, and the demand for judgment [the wherefore clause] have
purposely been omitted. Do not discuss any of these parts when you are assessing the
complaint. Remember that although a complaint may be minimally acceptable under the
Federal Rules, a good complaint is as perfect as possible so that the defendants attorney will
have no basis for attacking it on pleading grounds. This is an action for slander. Under the
applicable state law, a person who communicates a disparaging, damaging falsehood about the
plaintiff to a third person is liable for defamation or slander.

This is the complaint:

1. [Jurisdictional allegation]
2. On May 10, 1997, in Room 215 of Old Main on the campus of Space University, in
Old Plains, New York, defendant falsely stated Peter [referring to the plaintiff] is a heavy user
of crack cocaine. Defendant knew that this statement was false at the time that he made it.
3. As a result, plaintiff has been injured in his reputation, suspended from college, has
been unable to obtain any employment, and has suffered great mental anguish, all to his damage
in the sum of $100,000.

Please analyze whether this complaint satisfies the federal rules. If it is not fully satisfactory,
please identify its defects. If it is fully satisfactory, please explain why.

Practice Exam Question 1

Seler and Byer signed a written contract by which Seler agreed to sell Whiteacre to
Byer. The contract provided that the purchase price of Whiteacre was $85,000. Seler sent Byer
a deed conveying good title to Whiteacre.

Byer did not send Seler any money, but brought an action against Seler for reformation
of the contract to correct an alleged error in the contract price. Byer alleged that the agreed price
was $37,500, and that the $85,000 figure in the contract was a typographical error. The action
was brought in a federal district court. Subject matter jurisdiction and personal jurisdiction were
proper.

Seler filed an answer asserting that the written contract accurately stated the agreed
price. In addition, he counterclaimed for the $85,000 purchase price set forth in the contract and
demanded a jury trial. Byer answered the counterclaim and moved to strike the demand for jury
trial. The motion was denied.

Seler then served Byer with interrogatories demanding responses to the following
questions: (1) Have you had Whiteacre appraised? (2) If so, state by whom, state the appraised
value or values, and attach copies of all written reports received from all appraisers. Over
Byers timely objections to the interrogatories, the court ordered disclosure only of the identity
of appraisers and their appraised values.

At trial, Byer testified that the agreed price was $37,500 and that the $85,000 figure in
the written contract was a typographical error. An appraiser testified on behalf of Byer that the
value of Whiteacre when the contract was signed was, at most, $42,200. Byer rested his
case. Seler testified that the agreed price was $85,000, and judgment was entered
accordingly. Byer promptly moved for judgment notwithstanding the verdict (JNOV is now
called judgment as a matter of law); and, in the alternative, for a new trial. The court granted
the motion for judgment notwithstanding the verdict. No other motions were made during or
after trial.

1) Did the court rule correctly on the motion to strike the demand for a jury
trial? Discuss.

2) Did the court rule correctly on the objection to the interrogatories? Discuss.

3) Was the court correct in granting the motion for judgment notwithstanding the
verdict? Discuss.

Practice Exam Question 2

Smith was an employee of Zonco, a corporation which was incorporated and had its principal
place of business in State X. A truck owned by Zonco, while driven by Smith, struck Paul. Paul
was injured and sued Zonco for $150,000 in federal district court, alleging that Zonco and Smith
were negligent. Smith was not made a party defendant.

Zonco answered, denying the negligence of either Zonco or Smith, and further denying that Paul
was injured.

Paul then served Zonco with a notice to produce a written statement made and signed by a co-
worker of Smith who was riding with Smith at the time of the accident. The statement had been
obtained by an adjuster for Zoncos insurance carrier. Zonco refused to produce the statement
and the court sustained that refusal.

Paul took the deposition of Smith at which Smith testified under oath that (1) Paul was crossing
the intersection in the pedestrian crosswalk with the green light, and (2) the truck driven by
Smith ran into Paul because the brakes failed. Paul filed the deposition with a motion for
summary judgment on the issue of liability, reserving for the jury only the question of
damages. The motion was denied.

The action was tried before a jury. At the conclusion of the evidence, Zonco moved for a
directed verdict (judgment as a matter of law). There was uncontradicted testimony introduced
at trial that Smith was employed by Zonco and Paul had suffered a severe, painful injury as a
consequence of the accident, and that his special damages for medical and hospital bills and loss
of earnings were $80,000. The jury returned a verdict in the sum of $85,000. Zonco moved for
a judgment notwithstanding the verdict. This motion was denied. Paul moved for a new trial
solely on the issue of damages. The trial judge ordered that the motion should be granted, unless
Zonco consented to an increase in the judgment to $95,000.

Discuss the arguments which might reasonably have been made to the trial court in support of,
and in opposition to, the courts rulings on:

1) Pauls notice to produce;

2) Pauls motion for summary judgment;

3) Zoncos motion for judgment notwithstanding the verdict; and

4) Pauls motion for a new trial.