Civ Pro

B. Yes, the defense may depose the 16 witnesses with the approval of the court.

Question 4927 A plaintiff filed suit in federal district court under diversity jurisdiction, asserting a state-law claim against two co-defendants for civil fraud in a business transaction. Each defendant's attorney indicated that she sought to depose eight different witnesses, for a total of 16 witness depositions by the defense. The plaintiff declined to stipulate that the defendants can take more than 10 depositions. Do the Federal Rules of Civil Procedure allow all 16 depositions? Answers: A. Yes, the defense may automatically depose all 16 witnesses. B. Yes, the defense may depose the 16 witnesses with the approval of the court. C. No, the defense may not depose the 16 witnesses without the plaintiff's agreement. D. No, the defense is subject to an absolute limit of 10 depositions in an action based on diversity jurisdiction.

C. Yes, because the information in the recording is not available by other means.

Question 4932 A plaintiff brought an action for negligence in federal district court under diversity jurisdiction to recover for injuries he allegedly sustained in an automobile accident with the defendant. In preparation for trial, the defendant's attorney hired a private investigator to interview a woman who witnessed the accident. The private investigator recorded the woman's statements on his tablet computer. Two days after recording the interview, the woman died. The recording is the only statement the woman ever gave with regard to the accident. Is the plaintiff entitled to a copy of the recording in discovery? Answers: A. No, because the recording constitutes protected work product of the defendant's attorney. B. No, because the recording is protected by the attorney-client privilege. C. Yes, because the information in the recording is not available by other means. D. Yes, because the recording is relevant to the subject matter of the lawsuit.

D. The bank has no obligation to answer any of the interrogatories that have been served by the plaintiff.

Question 4934 A plaintiff filed suit against a defendant in a federal district court sitting in diversity jurisdiction, alleging state law fraud. In discovery, the plaintiff served 32 interrogatories on the defendant's bank for information regarding the defendant's banking transactions related to the subject matter of the lawsuit. How can the bank respond to the interrogatories? Answers: A. The bank may refuse to answer interrogatories 26 through 32 because they exceed the numerical limitation on interrogatories. B. The bank may refuse to answer all of the interrogatories because the plaintiff may only serve 25 interrogatories. C. The bank must move for a protective order to avoid answering the plaintiff's interrogatories. D. The bank has no obligation to answer any of the interrogatories that have been served by the plaintiff.

A. The damages claim, because of the Seventh Amendment. Remember: LEGAL claim BEFORE EQUITY claim So, damages claims BEFORE specific performance/injunction

Question 4938 In federal district court, a city employee sued the city and its mayor under a federal statute for violation of the employee's constitutional rights under the First and Fourteenth Amendments. The employee's complaint sought both permanent injunctive relief and damages. The complaint contained a demand for a jury trial on all claims. There are common issues of fact regarding both types of remedies sought. The damages claim is more complex and more important to the employee. The defendants have demanded that the claim for permanent injunctive relief be tried first. Which claim should be tried first? Answers: A. The damages claim, because of the Seventh Amendment. B. The damages claim, because this claim is more important to the employee. C. The claim for injunctive relief, because, as it is less complex, it can be disposed of more quickly. D. The claim for injunctive relief, because the defendant has demanded that this claim be tried first.

B. No, because the defendant has already exercised his peremptory challenges.

Question 4945 A plaintiff properly filed a civil action for breach of contract in a federal district court sitting in diversity. During voir dire, the defendant's attorney questioned a prospective juror about his familial relationship to the plaintiff. The potential juror stated that he was the plaintiff's third cousin, but also stated that he had not had any dealings with the plaintiff in over 20 years. The defendant challenged this prospective juror for cause, due to his potential bias. After questioning the prospective juror about his ability to give a fair trial to all parties and receiving an affirmative reply, the court denied the challenge. The defendant, having exercised three peremptory challenges, sought to excuse the potential juror by exercising a fourth peremptory challenge. Should the court permit the defendant to exercise a fourth peremptory challenge? Answers: A. No, because the court had denied the defendant's challenge for cause with respect to this prospective juror. B. No, because the defendant has already exercised his peremptory challenges. C. Yes, because a party has an unlimited number of peremptory challenges, provided such challenges are not made for racial- or gender-based reasons. D. Yes, because a court cannot dictate how a party exercises peremptory challenges that are not made for racial- or gender-based reasons.

A. Grant the motion to dismiss, because the person who has not been joined is both necessary and indispensable, and a state forum is available.

Question 4963 After conducting discovery, a defendant filed a motion to dismiss a breach of contract action based on diversity jurisdiction for failure to join a necessary party. The action, which was filed in federal district court, failed to name as a defendant a person with an interest that could be impaired by disposition of the action. That person is domiciled in the same state as the plaintiff. After considering the prejudice to the person and the other parties, and the adequacy of the judgment if the person was not joined, the court determined that the person was an indispensable party and that the same action could be brought in state court. What action should the court take? Answers: A. Grant the motion to dismiss, because the person who has not been joined is both necessary and indispensable, and a state forum is available. B. Deny the motion to dismiss, because the motion was not timely. C. Deny the motion to dismiss and permit joinder of the person as a defendant, because the person is a necessary party. D. Transfer the action to state court.

C. The court must grant the motion if there is no genuine dispute as to any material fact and the defendant is entitled to judgment as a matter of law. REMEMBER --> MUST NOT MAY

Question 4990 After the plaintiff properly filed a breach of contract action in federal district court, the defendant timely filed a demand for a jury trial. The defendant then timely filed a summary judgment motion. The plaintiff filed a response in opposition to the motion for summary judgment. In ruling on the defendant's motion for summary judgment, the court should apply which of the following standards? Answers: A. The court must grant the motion if the jury, based on a preponderance of the evidence, would find that the defendant is entitled to judgment. B. The court may grant the motion if the jury, based on a preponderance of the evidence, would find that the defendant is entitled to judgment. C. The court must grant the motion if there is no genuine dispute as to any material fact and the defendant is entitled to judgment as a matter of law. D. The court may grant the motion if there is no genuine dispute as to any material fact and the defendant is entitled to judgment as a matter of law.

A. No, because the plaintiff did not file a motion for judgment as a matter of law prior to the submission of the case to the jury.

Question 4994 The plaintiff properly filed an action in federal district court for breach of a partnership agreement. At the conclusion of the presentation of the evidence to the jury by both parties, the defendant filed a motion for judgment as a matter of law, contending that the evidence was insufficient as a matter of law to establish the existence of a partnership. The judge denied this motion. After the jury rendered a verdict in favor of the defendant, the plaintiff filed a motion for judgment as a matter of law 25 days after the entry of the judgment. Should the court grant the plaintiff's motion? Answers: A. No, because the plaintiff did not file a motion for judgment as a matter of law prior to the submission of the case to the jury. B. No, because the motion was not filed within 10 days of the entry of the judgment. C. Yes, because the defendant filed a motion for judgment as a matter of law at the conclusion of the presentation of the evidence to the jury by both parties. D. Yes, because the court rejected the defendant's motion for judgment as a matter of law at the conclusion of the presentation of the evidence.

C. Yes, because of the newly discovered evidence.

Question 4995 The jury in a federal class action lawsuit rendered a verdict that awarded the plaintiffs substantial damages resulting from exposure to toxic chemicals released by the defendant corporation. The verdict was not against the clear weight of the evidence and the damages awarded were not excessive. Shortly after the entry of the judgment, the defendant timely filed a motion for a new trial based on newly discovered evidence. While this evidence existed at the time of the trial, the defendant was excusably ignorant of it until after the trial. Moreover, this evidence refuted evidence presented by the plaintiffs at trial that successfully undermined the corporation's defense. Should the court grant the corporation's motion for a new trial? Answers: A. No, because the verdict was not against the clear weight of the evidence. B. No, because the damages were not excessive. C. Yes, because of the newly discovered evidence. D. Yes, because the trier of fact was a jury rather than a judge.

B. No, because the court considered the credibility of the patient's witnesses and the weight of the evidence.

Question 5030 A patient brought a suit against a physician in federal district court under diversity jurisdiction, alleging medical malpractice based on state law. After the patient presented his case to the jury, the physician moved for judgment as a matter of law. In deciding the motion, the court reviewed all of the evidence presented by the patient in the light most favorable to the patient. The court considered the patient's only two witnesses to not be credible and gave no weight to their testimony. As a result, the court determined that the patient did not present sufficient evidence for a jury to reasonably return a verdict in the plaintiff's favor. Accordingly, the court granted the physician's motion for judgment as a matter of law. Was the court's ruling proper? Answers: A. No, because the motion cannot be made until both parties have been fully heard. B. No, because the court considered the credibility of the patient's witnesses and the weight of the evidence. C. Yes, because the court viewed the evidence in the light most favorable to the patient. D. Yes, because the court determined that patient's witnesses were not credible.

A. No, because the prior judgment was a default judgment. Issue preclusion requires that the issue be ACTUALLY LITIGATED.

Question 5068 As part of the purchase price of a business, the buyer gave the seller several nonnegotiable promissory notes, each with a different amount and due date. When the buyer defaulted on the first note, the seller brought an action in state court to enforce the note. Although the buyer received proper and timely notice of the action, the buyer did not defend against it, even though the buyer was aware that the seller had fraudulently deceived the buyer as to the sales volume of the business. The state court in State L granted the seller a default judgment. Subsequently, the buyer defaulted on the second note. The seller brought an action to enforce this note in a federal court located in State L. The buyer defended against this action on the basis of the seller's fraud, which induced the buyer to purchase the business. The seller contends that the buyer is precluded from asserting this defense. Should the court rule that the buyer is collaterally estopped from asserting the seller's fraud as a defense to this action? Answers: A. No, because the prior judgment was a default judgment. B. No, because each note constitutes a separate claim. C. Yes, because the buyer failed to raise this defense in the prior action. D. Yes, because all notes were given by the buyer for the purchase of the business.

B. Yes, because diversity jurisdiction exists.

Question 5107 Upon the death of the insured, the named beneficiary of the $150,000 life insurance policy on the insured sought payment of the insurance proceeds. The personal representative of the insured's estate, contending that the beneficiary had exerted undue influence over the insured, demanded payment of the insurance proceeds to the insured's estate. The insurer filed an interpleader action pursuant to Rule 22 of the Federal Rules of Civil Procedure, naming both the beneficiary and the personal representative as defendants. In its complaint, the insurer alleged that, since the insured committed suicide, the insurer was not obligated to pay out the insurance proceeds to either defendant. The beneficiary and the personal representative are citizens of the same state; the insurer is a citizen of another state. Does the court have subject matter jurisdiction over this action? Answers: A. Yes, because there is no amount-in-controversy requirement in a Rule 22 interpleader action. B. Yes, because diversity jurisdiction exists. C. No, because both of the claimants are citizens of the same state. D. No, because the insurer has alleged that it is not liable to either defendant.

B. Yes, because the court did not have subject matter jurisdiction over the entity's claim.

Question 5117 A plaintiff filed an action in federal district court based on a state law claim. The court had diversity jurisdiction over the action. An entity timely sought to intervene as of right, contending that, although no federal statute conferred this right, the entity's interest was not adequately represented by the existing parties. Although it found that the entity had the right to intervene, the court refused to permit the intervention because, even though the entity's presence in the action would not violate the diversity-of-citizenship requirement, the entity's claim did not satisfy the amount-in-controversy requirement. Was the court's refusal proper? Answers: A. Yes, because intervention is not permitted in an action over which the court has diversity jurisdiction. B. Yes, because the court did not have subject matter jurisdiction over the entity's claim. C. No, because the entity's intervention was as of right rather than permissive. D. No, because the court had supplemental jurisdiction over the entity's claim.

D. Yes, because the value of the ring does not exceed $75,000.

Question 5118 A grocery store clerk found a ring while helping a customer with his groceries. Both the customer and the store owner have asserted a claim with regard to the ring, which has been valued at $67,000. The clerk, who has also claimed ownership of the ring, filed an interpleader action under Rule 22 in federal district court. The store owner and customer are citizens of the same state, and the clerk is a citizen of a neighboring state. The store owner has filed a motion to dismiss for lack of subject matter jurisdiction. Should the court grant the store owner's motion? Answers: A. No, because there is complete diversity between the clerk and the other two claimants. B. No, because the clerk has asserted a claim to the ring. C. Yes, because the customer and the store owner are citizens of the same state. D. Yes, because the value of the ring does not exceed $75,000.

D. No, because a cross-claim is never mandatory.

Question 5141 A manufacturer properly brought a product liability action in federal district court based on a design defect in a machine used by the manufacturer in producing a product. The suit named both the maker of the machine and the inventor of the machine as defendants. All three parties were citizens of different states. After the manufacturer won a judgment against both defendants, the manufacturer properly sought and obtained satisfaction of the judgment from the machine maker. The machine maker has now sued the inventor in federal district court for indemnification of $50,000 of the amount paid to the manufacturer. The inventor has asserted that the machine maker's failure to raise the indemnification claim in the prior action precludes this lawsuit. Should the court rule in favor of the inventor? Answers: A. Yes, because this claim arose out of the same transaction or occurrence as the manufacturer's claim. B. Yes, because the machine maker failed to raise the indemnification claim in the prior action. C. No, because the court would not have had subject-matter jurisdiction over the indemnification claim. D. No, because a cross-claim is never mandatory.

D. Yes, because it is a compulsory counterclaim.

Question 5142 A plaintiff properly filed a complaint in federal district court seeking damages from two defendants. The first defendant properly filed a cross-claim against the second defendant. The second defendant has a claim against the first defendant that arises out of the same transaction as the original complaint. Is the second defendant required to bring this claim in the current action? Answers: A. No, because it is a permissive cross-claim. B. No, because it is a permissive counterclaim. C. Yes, because it is a compulsory cross-claim. D. Yes, because it is a compulsory counterclaim.

A. Yes, because the employee's claim arises out of the same occurrence that was the subject matter of the defendant's indemnification claim.

Question 5149 A plaintiff properly filed an action in federal district court against a defendant for injuries suffered by the plaintiff in a car accident. The plaintiff alleged that the defendant was liable under a respondeat superior theory for the negligent driving of the defendant's employee. The defendant properly impleaded the employee, asserting a claim against the employee based on indemnification. At trial, the jury reached a general verdict in favor of the defendant. Subsequently, the employee filed an action in federal district court against the defendant, seeking to recover for injuries suffered as a consequence of the accident. The employee has asserted that the accident was caused by the defendant's failure to properly maintain the car that the employee was driving. Is the employee barred from pursuing this action? Answers: A. Yes, because the employee's claim arises out of the same occurrence that was the subject matter of the defendant's indemnification claim. B. Yes, because the employee failed to assert a cross-claim against the defendant in the prior action. C. No, because the employee was not the original defendant in the prior action. D. No, because the prior action was decided by a general jury verdict.

B. Yes, because the defendants were alleged to be jointly and severally liable for the patron's injuries.

Question 5150 A patron who was being seated at a restaurant sustained injuries when another patron, agitated over not being seated, started a physical altercation. The patron filed a complaint in federal district court against both the other patron and the restaurant, alleging that the assault and battery committed by the other patron and the negligence of the restaurant resulted in the patron's injuries. The patron's complaint asserted that the other patron and the restaurant were jointly and severally liable for his injuries. The complaint did not allege that the defendants acted in concert. Is joinder of these defendants and claims proper? Answers: A. Yes, because a plaintiff may bring whatever claims he has, including independent claims, against any party. B. Yes, because the defendants were alleged to be jointly and severally liable for the patron's injuries. C. No, because the complaint did not allege that the defendants acted in concert. D. No, because the same cause of action was not pled against each defendant.

D. The amount-in-controversy requirement is not met.

Question 5153 A class action based on a state consumer protection act was removed from state court to federal court. Each of the 200 plaintiffs seeks $10,000 in damages. Each of the representative plaintiffs is a citizen of the same state as at least one of the defendants, but there are members of the class who are citizens of states of which no defendant is a citizen. The plaintiffs have filed a motion to remand the action to state court due to lack of subject matter jurisdiction under the Class Action Fairness Act. For which of the following reasons should the district court grant this motion? Answers: A. The class is not sufficiently numerous. B. The diversity-of-citizenship requirement is not met. C. No one plaintiff has damages in excess of $75,000. D. The amount-in-controversy requirement is not met.

C. Yes, because the court may exercise supplemental jurisdiction over the daughter's claims.

Question 5170 A woman and her daughter were involved in a car accident with another car. The mother sustained serious injuries, but the daughter's injuries were relatively minor. The mother and the daughter filed a joint complaint against the driver of the other car in federal court in the state where the accident occurred. The complaint alleged that the defendant's negligence caused the mother and daughter to sustain physical injuries. The mother asserted damages of $250,000 against the defendant, and the daughter asserted damages of $10,000. The defendant is a citizen of the forum state, and the mother and daughter are citizens of a neighboring state. The defendant filed a motion to dismiss the claims asserted by the daughter, arguing that the court lacked jurisdiction over her claims. May the court exercise jurisdiction over the daughter's claims? Answers: A. No, because the daughter's claims do not meet the requirements for diversity jurisdiction. B. No, because the daughter is not a necessary party. C. Yes, because the court may exercise supplemental jurisdiction over the daughter's claims. D. Yes, because the daughter's participation is necessary for a just adjudication.

B. No, because a court must have subject-matter jurisdiction over all joined claims.

Question 5172 An employee left her job to move across the country and start her own business. After her departure, the employee and her former employer entered into a contract for the employee to provide consulting services to the employer for a one-year period. One month later, the employer told the employee that it intended to withhold payment under the contract because it was not satisfied with the services provided. The employee filed a complaint in federal court, alleging that the employer had breached the consulting contract, for which the employee sought $60,000 in damages. The complaint further alleged that the employee had been the victim of gender discrimination during the course of her employment, in violation of federal law. One week after being served with the complaint, the employer filed an answer. May the court properly adjudicate the employee's state law claims? Answers: A. No, because a plaintiff may not join federal and state law claims in the same action. B. No, because a court must have subject-matter jurisdiction over all joined claims. C. Yes, because a state claim may be joined if the requirements for diversity jurisdiction are satisfied. D. Yes, because a plaintiff may join as many claims as she has against the opposing party.

A. Grant the motion, because the owner has met her burden of persuasion with regard to the motion.

Question 6024 A plaintiff properly filed an action in federal district court to enforce a written land sale contract against the owner of a parcel of land. The contract contained a signature that is purported to be that of the owner. The owner timely filed a summary judgment motion. In support of the motion, the owner filed an affidavit, in which the owner stated that she did not sign the contract and, as a consequence, the contract is unenforceable under the jurisdiction's Statute of Frauds. In response, the plaintiff also filed an affidavit, in which he swore that he would call the owner's real estate broker at trial to testify that she witnessed the owner signing the contract. How should the court rule on the owner's summary judgment motion? Answers: A. Grant the motion, because the owner has met her burden of persuasion with regard to the motion. B. Grant the motion, because the court is required to construe the evidence in a light most favorable to the owner as the defendant in the action. C. Deny the motion, because the plaintiff has filed an affidavit in support of his position. D. Deny the motion, because the broker's testimony, as a nonparty, would have greater credibility than the owner's testimony.

A. The order is not subject to appeal before final judgment on the merits.

Question 6025 After a court-approved discovery period in a breach-of-contract case, the defendant timely filed a motion for summary judgment. After reviewing the motion and the plaintiff's response, the court ruled in favor of the plaintiff, issuing an order denying summary judgment. The defendant wants to appeal the court's order. Which of the following statements is most accurate? Answers: A. The order is not subject to appeal before final judgment on the merits. B. The order is not subject to appeal without the consent of the plaintiff. C. The order is immediately appealable, as it constitutes a final disposition. D. The order is immediately appealable with the consent of the court of appeals.

C. If the defendant timely files a petition for permission to appeal, the court of appeals may hear the appeal in its discretion.

Question 6026 A group of plaintiffs who claimed to have been injured by a corporate defendant's negligent design of its product sought certification as a class in federal district court for a class-action lawsuit against the corporate defendant. The federal district court entered an order certifying the class on August 1. The corporate defendant seeks to appeal the certification of the class. Which of the following is most accurate regarding an appeal by the corporate defendant? Answers: A. The defendant is precluded from filing an appeal of the order because of the final judgment rule. B. The defendant is precluded from filing an appeal of the order because the order is interlocutory. C. If the defendant timely files a petition for permission to appeal, the court of appeals may hear the appeal in its discretion. D. The defendant may appeal the order as of right.

D. The appeal was not timely filed.

Question 6027 A plaintiff filed suit against a defendant in federal district court. On February 14, the defendant moved to dismiss the entire complaint and the trial judge granted the motion. The order of final judgment was entered on February 25. The plaintiff filed a notice of appeal with the district clerk on April 13. Which of the following is most accurate regarding the plaintiff's appeal? Answers: A. The appeal is precluded by the final judgment rule. B. The appeal may be permitted according to the discretion of the court of appeals. C. The appeal was timely filed. D. The appeal was not timely filed.

A. The award should not be set aside unless it is clearly erroneous. FACTUAL FINDING = CLEARLY ERRONEOUS STANDARD APPLICABLE LAW = DE NOVO CONDUCT AT TRIAL = ABUSE OF DISCRETION

Question 6028 A plaintiff properly filed a negligence action in federal district court based on diversity jurisdiction. Although either party could have filed a demand for a jury trial, neither party did. The case was heard before a judge. The defendant admitted liability, but contested the amount of damages sought by the plaintiff. The judge considered both documentary as well as testimonial evidence before detailing her findings and making the award. The defendant has timely appealed this award. What is the appropriate standard of review for the appellate court to apply to the amount of damages awarded by the trial judge? Answers: A. The award should not be set aside unless it is clearly erroneous. B. The award should be reviewed under an abuse of discretion standard. C. The preponderance of the evidence standard applies because this is a civil case. D. The appellate court should consider the evidence de novo because this is a bench trial.

A. The appellate court can only set aside the trial judge's findings of fact if they are clearly erroneous.

Question 6029 A plaintiff lost a non-jury trial in federal district court in a state-law breach of contract action heard under diversity jurisdiction. The plaintiff has appealed the judgment to the appropriate court of appeals. Which of the following is most accurate concerning the appellate court's review of the case? Answers: A. The appellate court can only set aside the trial judge's findings of fact if they are clearly erroneous. B. The appellate court reviews the factual record de novo to determine whether the verdict is against the weight of the evidence. C. The appellate court cannot set aside the trial judge's findings of fact. D. The appellate court must reach its own independent conclusions on factual issues.

B. The trial court's findings of fact cannot be set aside unless clearly erroneous.

Question 6030 A plaintiff brought suit in federal district court against her former employer for damages resulting from alleged employment discrimination. By agreement of the parties, the matter was heard without a jury. The trial judge held for the plaintiff and the employer timely and properly appealed to the appropriate court of appeals. Which of the following is most accurate with regard to the appellate court's review of the case? Answers: A. The trial court's conclusions of law cannot be set aside unless clearly erroneous. B. The trial court's findings of fact cannot be set aside unless clearly erroneous. C. Both the trial court's findings of fact and conclusions of law are subject to de novo review by the appellate court. D. The appellate court must defer to both the trial judge's findings of fact and conclusions of law.

D. Deny the motion, because the plaintiff in the second suit is a different person from the plaintiff in the first suit.

Question 6214 A woman signed up with an online workout program. The program guaranteed that if the woman followed its diet and workout plan, she would lose 20 pounds in the allotted period. The woman did not lose the 20 pounds during that allotted period, so she sued the company that ran the program to get her money back. The company filed a summary-judgment motion, which the judge granted because the woman did not conduct regular correspondence with her online workout coach per the guidelines of the workout plan. The woman's friend, who had also joined the online workout program, then sued the company. The friend also did not lose the amount of weight she had set out to lose by following the workout plan, and she also did not contact her online workout coach per the workout plan guidelines. The company moved to dismiss the action based upon the doctrine of res judicata. How should the court rule on this motion? Answers: A. Grant the motion, because the issue sought to be precluded in the current action is the same as that resolved in the prior case. B. Grant the motion, because the company was the defendant in the prior case. C. Deny the motion, because the woman's case was resolved through the granting of a summary-judgment motion rather than a full trial. D. Deny the motion, because the plaintiff in the second suit is a different person from the plaintiff in the first suit.

A. No, because the claimants are not diverse.

Question 6718 An insurance company, incorporated and with its principal place of business in State A, brought a federal statutory interpleader action in federal district court after a dispute arose as to person(s) entitled under state law to the proceeds of an insurance policy in the amount of $100,000. The claimants under the policy are all citizens of State B. The insurance company posted a bond for $100,000, representing the disputed proceeds. Does the court have jurisdiction over the action? Answers: A. No, because the claimants are not diverse. B. No, because the claim does not arise under federal law. C. Yes, because the amount in controversy exceeds $75,000. D. Yes, because the insurance company is diverse from the claimants.