Top Hat (CIV PRO I)

Assuming that a lawsuit follows the ordinary course of events. Arrange the following events in chronological order 1. Presuit investigation 2. Commencement of action 3. Service of process 4. Pre answer motion 5. Serving an answer 6. Discovery

1. Presuit investigation 2. Commencement of action 3. Service of process 4. Pre answer motion 5. Serving an answer 6. Discovery

What is a "consent judgment"? A. A consent judgment is a judgment issued by a judge based on an agreement between the parties to a lawsuit to settle the matter; it is aimed at ending the litigation with a judgment that is enforceable. B. A consent judgment is a judgment based on a debtor acknowledging that the debt is owed; in many instances, this form of judgment is utilized in conjunction with a payment plan; the debtor the judgment as "security" so that if the debtor defaults on a payment plan, the creditor is not faced with a reduced balance which makes it economically inefficient to seek collection in full. C. A consent judgment is a judgment that results from a defendant's failure to respond to a complaint. D. A consent judgment is a judgment that results from an arbitration award; it results from a hearing to confirm the award.

A. A consent judgment is a judgment issued by a judge based on an agreement between the parties to a lawsuit to settle the matter; it is aimed at ending the litigation with a judgment that is enforceable.

Which motion reflects a situation where there is no need for a trial because no genuine dispute of material fact exists and one of the parties is entitled to judgment as a matter of law? A. A motion to dismiss for failure to state a claim upon which relief may be granted. B. A motion for an voluntary dismissal. C. A motion for summary judgment. D. A motion to drop a misjoined party.

A. A motion to dismiss for failure to state a claim upon which relief may be granted. C. A motion for summary judgment.

Assume that the following is used in a discovery device: "The plaintiff asks the defendant to respond within 30 days by admitting, for purposes of this action only and subject to objections to admissibility at trial, the genuineness of the attached of the attached contract." Under the Federal Rules, this is an example of what type of discovery device? A. A request for admission B. an example of a question in an oral deposition C. an interrogatory to a party D. an option to produce business cards

A. A request for admission

Assume that P and D have been involved in an automobile accident. Assume that P has sued D in a diversity action in federal because P believes that D was negligent because D was driving while intoxicated when D ran P off the road. D readily admits that D was "drunk as a skunk." However, D believes that P was also driving while legally intoxicated and that under the applicable law that fact would make P contributorily negligent, which would provide a complete defense to P's action. In light of the Federal Rules, including Rule 11, which of the following actions could D take? A. D should plead the fact of P's intoxication, in such detail as required, as an affirmative defense in D's answer. B. D should deny D's own negligence in order to make P prove it in court. C. D should assert a counterclaim against P because, in litigation, the best defense is a good offense. D. D should not answer the claim because it would be a waste of time since both P and D were negligent and neither one can recover anything.

A. D should plead the fact of P's intoxication, in such detail as required, as an affirmative defense in D's answer.

P, a citizen of New York, sues D, a citizen of California, in federal district court for $500,000 based on a breach of contract claim. D wants to assert a claim against P in the pending action for libel based on a completely separate occurrence, for which D seeks to recover $500,000. Under these circumstances, what would D's libel claim be called and in what pleading would it be asserted or would D be required to assert the libel claim in a separate action? A. D's libel claim would be a permissive counterclaim and it would be asserted in D's answer in the pending action. B. D's libel claim would be a compulsory counterclaim in the pending action because the amounts sought by both parties is the same. C. D's libel claim would be a permissive crossclaim in the pending action and it would be asserted in D's answer. D. D's libel claim would be a an affirmative defense in the pending action and it would be asserted in D's reply. E. None of the above; D would have to assert D's libel claim in a completely separate action

A. D's libel claim would be a permissive counterclaim and it would be asserted in D's answer in the pending action.

Which clause(s) or amendment(s) of the U.S. Constitution embodies the fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard? A. Due Process Clause of the 5th Amendment B. Full Faith and Credit Clause C. Supremacy Clause D. Due Process Clause of the 14th Amendment E. Necessary and Proper Clause

A. Due Process Clause of the 5th Amendment D. Due Process Clause of the 14th Amendment

Assume that P raises greyhound dogs and that D stole several dogs from P's kennel on P's land. D entered one of the greyhounds in a race and won $25,000. P wants to bring a common-law action against D to recover the prize money. P's theory is that no person should be allowed to profit at another's expense without making restitution for the reasonable value of any property, services, or other benefits that have been unfairly received and retained. What form of action should P use to do so? A. General Assumpsit B. Special Assumpsit C. Trover D. Ejectment

A. General Assumpsit

Assume that P raises greyhound dogs and that D stole several dogs from P's kennel on P's land. The fair market value of the stolen dogs was $1000. However, because D forged papers showing the dogs had a superior pedigree than they really had, D was able to sell them to an unsuspecting buyer for $10,000. P wants to bring a common-law action against D to recover the proceeds of the sale. Which one of the following forms of action should P use to do so? A. General Assumpsit B. Trespass (de bonis asportatus) C. Ejectment D. Special Asusumpsit

A. General Assumpsit

Assume that the defendant wants to request the federal district court to order a physical examination of the plaintiff's injured arm that is the basis of the plaintiff's damage claim pending against D. What condition(s) must be met in order for the defendant to succeed in this request? (Multiple) A. Good cause B. The condition of the plaintiff's arm is in controversy C. The need for the examination has been certified by an independent physician D. The condition of the arm is not protected by doctor-patient privilege.

A. Good cause B. The condition of the plaintiff's arm is in controversy

Which of the following are ACCURATE statements about interpleader? A. Interpleader may be used by either plaintiffs or defendants. B. Interpleader is the formal or systematic questioning of a person who claims an interest in the litigation. C. Interpleader involves a stakeholder who is in doubt about which of one or more claimants to property held by the stakeholder. D. Interpleader is typically used so that a stakeholder can avoid double or multiple liability. E. The act of inserting words (often extraneous or false ones) into a pleading to avoid liability.

A. Interpleader may be used by either plaintiffs or defendants. C. Interpleader involves a stakeholder who is in doubt about which of one or more claimants to property held by the stakeholder. D. Interpleader is typically used so that a stakeholder can avoid double or multiple liability.

In a traditional common-law action, what did a traverse do? A. It amounted to a simple denial of a prior factual allegation. B. It created an issue of law C. It admitted the allegations of the prior pleading and presented new matter to avoid the legal effect of those allegations. D. It asserted that the previous alleged facts did not give rise to a legally recognized claim or defense. E. Answers B and D are correct

A. It amounted to a simple denial of a prior factual allegation.

The statute of limitations may be supported by procedural and substantive policies. Of the two policies listed below, which is the one that embodies procedural purposes? A. Minimizing the deterioration of evidence, which helps to ensure accurate fact finding, prevent fraud, reduce litigation costs, and preserve the integrity of the legal system B. Repose, which allows peace of mind, avoids disrupting settled expectations, reduces uncertainty about the future, and reduces the cost of measures designed to guard against the risk of untimely claims

A. Minimizing the deterioration of evidence, which helps to ensure accurate fact finding, prevent fraud, reduce litigation costs, and preserve the integrity of the legal system

Assume that P sues D for damages in a federal district court. P asserts that D was negligent in operating D's automobile and, as a result, injured P and damaged P's automobile. D serves an answer admitting that the accident occurred, denying D's negligence, asserting P's contributory negligence as an affirmative defense, and asserting a compulsory counterclaim alleging that P was negligent and liable for D's injuries and damage to D's automobile. Under the Federal Rules of Civil Procedure, what action, if any, must P take? A. P is required to serve an "answer" to D's counterclaim (assuming that D's counterclaim was designated as a counterclaim). B. P is required to serve a "replication" to D's counterclaim (assuming that D's counterclaim was designated as a counterclaim). C. P is not required to serve any response; the allegations of D's counterclaim are automatically taken as denied or avoided. D. P is not permitted to serve any response; the allegations of D's counterclaim are automatically taken as denied or avoided.

A. P is required to serve an "answer" to D's counterclaim (assuming that D's counterclaim was designated as a counterclaim).

Historically, which of the following was NOT associated with the development of equity? A. Pleading to a single issue of fact or law B. the chancery court C. the clean up doctrine D. decrees of specific performance E. all above are associated with equity

A. Pleading to a single issue of fact or law

Assume that a state statute provides as follows: "The manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained. Nonetheless, no action shall be commenced pursuant to this section with respect to an injury after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury regardless of when the cause of action or claim accrues or the defect is discovered." Assume that the legislative history of this section indicates that the sole purpose of the ten-year limitation is to create a final deadline for filing suit that is not subject to any exceptions so that the manufacturer can "rest easy" knowing that they won't be sued. The ten-year limitation is MOST LIKELY an example of what kind of provision? A. This kind of provision, known as a statute of repose, is most likely an example of a provision enacted for a "substantive" purpose. B. This kind of provision, known as a statute of repose, is most likely an example of a provision enacted for a "procedural" purpose.

A. This kind of provision, known as a statute of repose, is most likely an example of a provision enacted for a "substantive" purpose.

P, D-1, and D-2 have a three car automobile accident. P sues D-1 and D-2 for damages for personal injuries arising out of the automobile accident, alleging that either D-1 or D-2 or both were negligent and caused P's injuries. Under these circumstances, if the judicial system in which P commenced the action has a permissive party joinder rule identical to Rule 20 of the Federal Rules of Civil Procedure, are D-1 and D-2 properly joined? A. Yes, D-1 and D-2 are properly joined in the action because the claims against them arise out of the same transaction or occurrence and involve common questions of law or fact. B. Yes, D-1 and D-2 are properly joined in the action because the claims satisfy the "local action" rule C. No, D-1 and D-2 are not properly joined in the action. D. both answers A and B are correct

A. Yes, D-1 and D-2 are properly joined in the action because the claims against them arise out of the same transaction or occurrence and involve common questions of law or fact.

If no other court within a state can be found with subject-matter jurisdiction over a case, which court will be, by definition, able to hear the case?

A. any court the plaintiff chooses within the system B. The court of general jurisdiction C. A court of equity D. The superior court E. The state supreme court

When a court is reviewing and revising determinations made by other courts, what kind of jurisdiction is the court is exercising? A. appellate jurisdiction B. original jurisdiction C. concurrent jurisdiction D. personal jurisdiction

A. appellate jurisdiction

Which of the following pleadings would be permitted in a code pleading state modeled on the N.Y. Field Code? A. complaint B. answer C. reply D. rejoinder

A. complaint B. answer C. reply

Consider the following provision: "A pleading must state as a counterclaim any claim that--at the time of its service--the pleader has against an opposing party if the claim arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require adding another party over whom the court cannot acquire jurisdiction." Of what kind of rule is this provision MOST LIKELY a good example? A. purely procedural B. purely substantive C. both

A. purely Procedural

If the plaintiff wanted to have specific personal property in the defendant's possession seized and returned to the plaintiff on the ground that the plaintiff is immediately entitled to its possession, which one of the following provisional remedies should the plaintiff use? A. replevin B. attachment C. receivership D. garnishment

A. replevin

What are the federal INTERMEDIATE APPELLATE courts today called? A. the federal intermediate appellate courts are the courts of appeals B. the federal intermediate appellate courts are the superior courts C. the federal intermediate courts are the appellate division of the district courts

A. the federal intermediate appellate courts are the courts of appeals

Assume that P, D-1, and D-2 have a three-car automobile accident in Minnesota and that all parties are injured. P is from Wisconsin, D-1 is from Minnesota, and D-2 is from Ohio. If P were to commence a negligence action to recover damages for P's injuries as a result of the accident in a U.S. District Court, the location of the suit would be controlled by which of the following rules? A. venue B. subject matter jurisdiction C. joinder of claims D. supplemental jurisdiction

A. venue

What was a "wager of law"? A. A wager of law was a trial of a dispute determined by the outcome of a personal battle or combat between the parties or in an issue joined upon a writ of right between their champions . B. A wager of law was essentially a character reference, initially by kin and later by neighbours (from the same region as the defendant), often 11 or 12 men, and it was a way to give credibility to the oath of a defendant at a time when a person's oath had more credibility than a written record; it was also known as compurgation. C. A wager of law was the procedure by which a legal claim can be made. A plaintiff could start an action only when it is possible to state the claim in words that followed one of the traditional forms. D. A wager of law was the mode of trial in trespass actions. E. A wager of law was a formal bet on what rule or outcome would be announced in a pending case.

B. A wager of law was essentially a character reference, initially by kin and later by neighbours (from the same region as the defendant), often 11 or 12 men, and it was a way to give credibility to the oath of a defendant at a time when a person's oath had more credibility than a written record; it was also known as compurgation.

Which of the following establishes the outer boundary of federal subject-matter jurisdiction (the authority of the federal courts to hear the class of cases to which the plaintiff's suit belongs)? A. limited jurisdiction B. Article III of the US Constitution C. the no waiver or consent rule D. original jurisdiction

B. Article III of the US Constitution

Assume the defendant wants to dispute the truth of an allegation in the plaintiff's complaint in a civil action in federal court. Which of the following would be proper method for doing so? A. By asserting truth as an affirmative defense in the defendant's answer. B. By denying the relevant allegation in the defendant's answer C. By moving to strike the plaintiff's allegation on the ground that the allegation was untrue D. By moving to dismiss the plaintiff's action by means of a motion to dismiss for failure to state a claim upon which relief can be granted

B. By denying the relevant allegation in the defendant's answer

Assume that P raises greyhound dogs and P has sued D in a common-law action. P alleged that D stole several dogs from P's kennel on P's land and seeks their value at the time and place of taking. In contrast, D maintains that P had given the dogs to D and that P has only now claimed they were stolen because one of the dogs turned out to be an excellent racing dog. In D's defensive response to P's common-law action, what is the proper method for D to deny P's allegation that the dogs had been stolen? A. D should use a general demurrer B. D should traverse C. D should confess and avoid D. D should assert a dilatory plea

B. D should traverse

The geographic location within a sovereign's territory where a particular type of action may or must be brought designates or establishes what? A. It designates the location where personal jurisdiction is proper B. It designates the proper venue for the action C. it establishes the subject matter jurisdiction of the court D. it establishes the applicable law

B. It designates the proper venue for the action

Assume that P sued D for breach of a contract in federal court. What is the proper and most efficient method to add a claim for new damages based on additional breaches of the contract occurring after commencement of the action? A. P should serve an amended complaint B. P should serve a supplemental pleading; in this instance, it would be a supplemental complaint C. P should dismiss the complaint voluntarily and commence a new action D. P should commence a declaratory judgment action based on the new damages

B. P should serve a supplemental pleading; in this instance, it would be a supplemental complaint

Consider the following state statute: "No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions." Of what kind of rule is this provision MOST LIKELY a good example? A. Purely procedural rule B. Purely substantive rule C. Rule that may be both

B. Purely substantive rule

Which form of action developed into the modern law of contracts? A. Trespass B. Special Assumpit C. Trover D. General Assumpit E. Replevin

B. Special Assumpit

Which of the following is an ACCURATE definition or description of "intervention"? (Multiple) A. The rules and principles used to determine controversies between residents of different states B. The act of entering into a lawsuit by (1) a third party who has an interest in the outcome of the lawsuit and (2) who has not been a named a party to the action previously. C. The method used to distribute property owned by a person who died while a lawsuit was pending against that person. D. The legal procedure by which a third party is allowed to become a party to the litigation.

B. The act of entering into a lawsuit by (1) a third party who has an interest in the outcome of the lawsuit and (2) who has not been a named a party to the action previously. D. The legal procedure by which a third party is allowed to become a party to the litigation.

Asusme that D owes P a debt of $100,000, but D refuses to pay. Assume that P commences a diversity action in federal district court to collect the debt. Assume that D does not appear in the action or otherwise respond after being properly served with process. Assume the plaintiff brings to the attention of the clerk of the court that the defendant has failed to appear after being served with the summons and complaint. What is the next thing or event that happens? A. The plaintiff can have the sheriff seize the defendant's property and sell it at a sherriff's sale in repayment of the debt. B. The clerk enters default on the record. C. The judge will award the plaintiff with a default judgment, which is just as good as any other judgment. D. The plaintiff need not do anything else; the clerk will mail the plaintiff the default judgment.

B. The clerk enters default on the record.

Assume that an individual is regarded as being too young to commence a lawsuit in a particular jurisdiction without a legal representative to handle the litigation. If such an individual sued in their own name without a representative, which of the following is a proper description of this situation? A. The individual is not the real party in interest B. The individual lacks the capacity to sue C. The individual has split the individual's claim for relief D. the individual is a misjoined party

B. The individual lacks the capacity to sue

Which of the following, if any, is an ACCURATE statement? A. The vast majority of civil actions in the United States are filed in the federal courts, not the state courts. B. There is at least one federal district court in every state and some states are divided into multiple federal districts. C. Federalism refers to the separation of powers between the legislative, executive, and judicial branches of government. D. The most common designation of the highest court in court systems in the United States is the "Superior Court." E. None above are accurate

B. There is at least one federal district court in every state and some states are divided into multiple federal districts.

Assume that the plaintiff needs to correct an error in the plaintiff's allegations in the complaint. By what means would the plaintiff do so? A. a supplemental pleading B. an amendment C. a provisional remedy D. a new summons

B. an amendment

Assume a pleading in federal court contains the following allegations: (1) "Defendant admits the allegations in paragraphs ___." (2) "Defendant lacks knowledge or information sufficient to form a belief about the truth of the allegation in paragraph ___." (3) "Defendant admits ​[a specific part of an allegation] in paragraph ___ and denies the truth of the rest of paragraph." In what document would you expect to find these types of allegations? A. a complaint B. an answer C. a counterclaim D. a motion to dismiss for failure to state a claim upon which relief may be granted

B. an answer

Assume that the defendant's answer contains the following allegation: "If there is a debt, it is owed jointly by the defendant and ​[name] who is a citizen of _. This person can be made a party without depriving this court of jurisdiction over the existing parties." This allegation is an example of what defense or objection? A. improper venue B. failure to join a party under Rule 19 C. insufficient service of process D. lack of personal jurisdiction

B. failure to join a party under Rule 19

Assume that an equity court orders the specific performance of contract on the ground that monetary damages are deemed to be inadequate because the contract involved land or a unique chattel (piece of personal property). Which one of the following would be the basis for the court doing so? A. fair and just compensation B. inadequate remedy at law C. the clean up doctrine D. merger of law and equity

B. inadequate remedy at law C. the clean up doctrine

Under the Federal Rules, the following is an example of what type of discovery device? "If you contend that the personal injuries of Plaintiff were not caused by the collision with your vehicle, state with particularity the facts upon which you base your contention." A. Request for admission B. Interrogatory C. Request for the production D. Request for physical or mental examination

B. interrogatory

Assume that D illegally fishes on P's land, catches a very large fish, and subsequently wins a $20,000 prize in a contest using P's fish. Which of the following remedies would provide the LARGEST recovery if P were to sue D? A. damages B. restitution C. civil contempt D. declaratory relief

B. restitution

Under the Federal Rules of Civil Procedure, what is the name of the document(s) that the defendant ordinarily receives at the outset of a civil action? A. restraining order B. summons C. return of service D. complaint E. indictment

B. summons D. complaint

Assume that at trial the judge realizes that the court lacks jurisdiction over the action because there is a lack of diversity of citizenship among the parties and the defect cannot be cured. What is the proper course of action at that point for the judge to take? A. The judge should enter judgment for the defendant. B. The judge should dismiss the action C. The judge should do nothing because the defendant failed to object in a timely manner and thus the objection has been waived. D. The judge should strike the complaint

B. the judge should dismiss the action

What is the principal TRIAL court in the federal system called? A. the principal federal trial court is the circuit court B. the principal federal trial court is the district court C. the principal federal trial court is the superior court D. the principal federal trial court of the court of claims

B. the principal federal trial court is the district court

In a traditional common-law action, which form of action would be appropriate to assert a claim for damages based on false imprisonment? A. ejectment B. Trespass C. trespass on case D. trover E. General assumpsit

B. trespass

Which form of action at common law is the source of the modern law of conversion? (Conversion is an intentional tort consisting of "a taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession." A chattel is a piece of personal property, including something that can be moved, such as a horse, a watch, or a car; chattel also can refer to rights such as copyright and patents; it usually does not refer to land and buildings.) A. general assumpsit B. trover C. ejectment D. covenant E. detinue

B. trover

The Civil Rights Act of 1871 is a federal statute that allows people to sue for civil rights violations. It applies when someone acting "under color of" state-level or local-level law has deprived a person of rights created by the U.S. Constitution or federal statutes (based on 42 U.S.C. § 1983). Federal and state courts have concurrent jurisdiction over § 1983 claims. Assume that P has a federal civil rights claim against D and that P has commenced an action in a state court to recover damages based on § 1983. By what means, if any, can D have the action moved to federal court? A. By a motion to transfer based on improper venue B. By moving for a forum non conveniens dismissal C. By filing a notice in the federal district court requesting removal of the action from state to federal court D. By moving to dismiss the action for lack of subject-matter jurisdiction. E. It is P's prerogative to choose the court in which P asserts P's claim and it would be unfair to P to have P's choice denied by moving the action to a federal court; thus, D cannot defeat P's right by seeking to move the case to federal court; as a result, none of the above means are possible

C. By filing a notice in the federal district court requesting removal of the action from state to federal court

Assume that P sues D-1 and D-2 in a federal district court based on diversity of citizenship and more than the requisite amount in controversy. Assume D-1 and D-2 believe that they have been improperly joined in the action. What should D-1 and D-2 do to properly raise the misjoinder? A. D-1 or D-2 should move to dismiss the action using a preanswer motion based on P's failure to state a claim upon which relief may be had. B. D-1 or D-2 should move to dismiss the action using a preanswer motion on the ground that venue is improper. C. D-1 or D-2 should move to have the improperly joined party dropped pursuant to Federal Rule 21. D. D-1 or D-2 should move to dismiss the action because D-1 and D-2 are not mandatory parties required to be joined by Federal Rule 19

C. D-1 or D-2 should move to have the improperly joined party dropped pursuant to Federal Rule 21.

Which one of the following terms BEST describes the coordinate relationship and distribution of power between individual states and the national government in the United States? A. Separation of Powers B. Full Faith and Credit C. Federalism D. Jurisdiction

C. Federalism

Assume that an action was filed against the Scripps Newspapers and the Ventura County Star-Free Press concerning a spelling bee these defendants sponsored in Ventura County, California. The plaintiff in the action, a student, had won competitions at the classroom and school-wide levels. which earned him the chance to compete in the county-wide spelling bee. The best speller in the county won a trip to Washington D.C. and a place in the national finals. In the final round of the county bee, the contest officials made a mistake, and, instead of winning, the plaintiff came in second. The plaintiff (through his parents) sued the defendants in a California Superior Court seeking damages. If the California courts were to decide that this case would not be appropriate for judicial resolution, on which one of the following grounds would the courts MOST LIKELY rely? A. Mootness because the county competition is over. B. Standing because the plaintiff really didn't suffer that much of an injury. C. Justiciability because the claim, like a referee's decision in a sporting event, is not an appropriate kind of case for judicial resolution. D. Ripeness because no actual controversy is really presented involving a threat of injury that is real and immediate.

C. Justiciability because the claim, like a referee's decision in a sporting event, is not an appropriate kind of case for judicial resolution.

Assume that P's neighbor, D, has been taking a short-cut across P's land. P has asked D to stop, but D continues to do so. Assume that P has sued D for damages several times in common-law trespass actions and recovered nominal amounts. Nevertheless, D has continued to cut across P's land after the conclusion of each action. In this situation, which of the following is P's BEST remedy? A. P should bring an ejectment action, which would result in the sheriff "ejecting" D whenever P tried to cut across P's land. B. P should turn P's dogs loose in order to chase D off the land; if D got mauled by the dogs, that would teach D a lesson and D would certainly think about doing it again. C. P should bring an action in equity seeking an injunction prohibiting D from cutting across P's land; if D violated the injunction, D could be held in contempt. D. P should sue D again; this time P should use trespass on the case because D's actions constitute a nuisance.

C. P should bring an action in equity seeking an injunction prohibiting D from cutting across P's land; if D violated the injunction, D could be held in contempt.

Assume that P raises greyhound dogs and that D stole several dogs from P's kennel on P's land. D refuses to return them. P wants to bring a common-law tort action against D to have them returned and to recover damages for their wrongful detention. What form of action should P use? A. Trespass B. Conversion C. Replevin D. Detinue

C. Replevin

When do the Federal Rules of Civil Procedure require a plaintiff to respond to a defendant's answer (assuming the court does not require any special response)? A. The plaintiff must respond when the defendant's answer contains an affirmative defense. B. The plaintiff must respond when the defendant's answer contains a denial. C. The plaintiff must respond when the defendant's answer contains a counterclaim. D. Answers A and C, above, are both situations in which the Federal Rules of Civil Procedure require the plaintiff to respond. E. Answers A, B, and C are all situations in which the Federal Rules of Civil Procedure require the plaintiff to respond.

C. The plaintiff must respond when the defendant's answer contains a counterclaim.

Assume that P raises greyhound dogs and that D stole several dogs from P's kennel on P's land. Assume further that P doesn't want to the stolen dogs back. If P wants to bring a common-law action against D to recover the value of the dogs at the time and place of their unlawful taking, which one of the following forms of action should P use? A. Ejectment B. General Assumpsit C. Trover D. Trespass (based on false imprisonment of the dogs)

C. Trover

Assume that a collision at an intersection occurs involving two cars. There is a dispute which driver was responsible. Under modern procedural systems, can the driver and a passenger in one car join together in a lawsuit against the driver of the other car to recover damages for their respective injuries? A. Yes, because the claims asserted by the driver and passenger arise out of the same transaction, occurrence, or series of transactions or occurrences. B. Yes, because there will be at least one question of law or fact common to the driver's and passenger's claims against the other driver (e.g., who was negligent). C. Yes, for the reasons stated in Answers A and B, above. D. No, there would need to be two separate lawsuits in this situation because the driver's and passenger's damages will be different.

C. Yes, for the reasons stated in Answers A and B, above.

Assume that the plaintiff's lawyer submits written questions to the defendant's lawyer in advance of the defendant being asked the questions orally by a presiding officer and the defendant having to answer the questions under oath. Under the Federal Rules, this is an example of what type of discovery device? A. A deposition by oral examination B. an interrogatory C. a deposition upon written questions D. a deposition to perpetuate testimony

C. a deposition upon written questions

What is the defendant's first pleading? A. a reply B. a motion C. an answer D. a replication

C. an answer

Assume that D owns a nice tract of land with a pond and cabin on it. P sues D in federal district court for breach of a contract to sell land to P. I, who is occupying the property, subsequently learns of P's lawsuit and wants to join the ongoing litigation between P and D, either as a matter of right or at the discretion of the court because I believes that I has acquired title to the land by means of adverse possession. Under the Federal Rules of Civil Procedure, what is the proper means for I to attempt to join the lawsuit (without the permission of P and D)? A. A request for admission B. impleader C. intervention D. a crossclaim

C. intervention

What is the name of the document that (1) notifies the defendant that an action has been commenced against the defendant and (2) commands the defendant to appear and defend the action by a certain date or the court will enter a judgment against the defendant for the remedy demanded by the plaintiff? A. return of service B. complaint C. summons D. interpleader

C. summons

Assume that a federal antitrust case involving price fixing is tried in the U.S. District Court in Omaha, Nebraska and that the losing party wants to appeal the decision in the case. To which court would the losing party appeal? A. the Nebraska Supreme Court B. the Appellate Division of the US District Court C. the US Court of Appeals for the Eighth Circuit D. the Nebraska Court of Appeals

C. the US Court of Appeals for the Eighth Circuit

Assume a court decides that it would be inappropriate to hear a case because the issue involved is not "sufficiently important" or the party raising it is not a "proper litigant." Of the following, which one of the following BEST states how that decision would be described? A. the court lacks jurisdiction B. there is no authority to hear the case C. the case is not justiciable D. the plaintiff lacks a valid claim for relief E. the claim is moot

C. the case is not justiciable

On the facts of Problem 1-1, which of the following original writs/forms of action, if any, would P have traditionally used at common law to assert P's claim for damages based on D-2's negligent driving of D-2's vehicle? A. account B. debt C. trespass on the case D. trover E. assumpsit F. none of the above

C. trespass on the case

Which of the following, if any, is NOT a characteristic of the adversary system or court organization in the United States? A. The parties (usually through their lawyers) bear the principal burden of initiating, developing, and presenting the case. B. Each party bears the respective burden of the proof to the court on issues, elements, or defenses allocated by the law to its respective side. C. Courts in the United States are specific to areas of law; there are separate constitutional courts, administrative courts, and other courts that opine on consistency of legislation and administrative acts as well as interpret that specific code or constitutional provisions; those courts have the authority to make final decisions that are not reviewed by any other court. D. If a case does not settle or is not otherwise disposed of during pretrial proceedings, the case will be determined by a trial either before a judge or a jury, depending on the circumstances; the final result of the proceeding will be a formal determination of the controversy called a "judgment." E. All of the above are correct

Courts in the United States are specific to areas of law; there are separate constitutional courts, administrative courts, and other courts that opine on consistency of legislation and administrative acts as well as interpret that specific code or constitutional provisions; those courts have the authority to make final decisions that are not reviewed by any other court.

Which of the following BEST expresses what "without prejudice" means in the context of a voluntary dismissal? A. A dismissal without prejudice means that the judge has not expressed any opinion in the case on whether the plaintiff's claim was meritorious. B. A dismissal without prejudice means that the plaintiff regarded the judge as being too biased to proceed in the action; therefore, the plaintiff voluntarily has dismissed the action. C. A dismissal without prejudice means that the plaintiff does not have to pay any court costs and the plaintiff's filing fee is refunded. D. A dismissal without prejudice means that the case is only dismissed temporarily; the plaintiff is allowed to re-file the claim, alter the claim, or bring the case in another court.

D. A dismissal without prejudice means that the case is only dismissed temporarily; the plaintiff is allowed to re-file the claim, alter the claim, or bring the case in another court.

Which of the following purposes is NOT a proper one for a pretrail conference? A. A pretrial conference may be conducted to expedite disposition of the case B. A pretrail conference may be conducted to help the court establish managerial control over the case C. A pretrial conference may be conducted to discourage wasteful pretrial activities and to improve the quality of the trial with thorough preparation. D. A pretrial conference may be conducted to force a settlement of the case.

D. A pretrial conference may be conducted to force a settlement of the case.

Which of the following is NOT prohibited by the good faith requirements of Federal Rule 11(b)? A. Alleging facts in the complaint that the plaintiff knows to be untrue. B. Denying facts in the answer that the defendant knows to be true. C. Asserting a written preanswer motion for the purpose of harassing the other party. D. All of the above are prohibited.

D. All of the above are prohibited.

P sues D in a civil action in state court, seeking damages for personal injuries received in an automobile accident with D. D believes that a court in a foreign country would be a much more convenient place for the adjudication of the action because the events giving rise to suit occurred there and all the witnesses and evidence are located there. Under these circumstances, what is the proper action to for D to take? A. D should move to transfer the action to the courts of the foreign country. B. D should remove the action to federal court and then move to transfer it to the foreign country under the federal venue transfer statutes. C. D should move to transfer the action under the state's own transfer of venue statutes. D. D should move to dismiss on grounds of forum non conveniens.

D. D should move to dismiss on grounds of forum non conveniens.

Assume that P raises greyhound dogs and that D stole several dogs from P's kennel on P's land. P hired an investigator to track down the stolen dogs. The investigator found the dogs and secured their return. P wants to bring a common-law action against D to recover damages. What is the name of P's initial pleading in that common-law action? A. Complaint B. Plea C. Petition D. Declaration

D. Declaration

Which clause, amendment, or principle of the U.S. Constitution imposes the duty on a state to recognize another state's judgment in a judicial proceeding? A. Due Process Clause of the Fourteenth Amendment. B. Supremacy Clause C. Principle of Separation of Powers D. Full Faith and Credit Clause

D. Full Faith and Credit Clause

Assume that P sues D for damages in a federal district court. P asserts that D was negligent in operating D's automobile; as a result, D injured P and damaged P's automobile. D serves an answer admitting that the accident occurred, denying D's negligence, and asserting P's contributory negligence as an affirmative defense (which, if true, would be a complete bar to P's claim even if D had been negligent under the applicable substantive law.) P believes that even if P had been negligent, D had the "last clear chance" to avoid the accident. If true, then P could still recover under the applicable substantive law. After D serves D's answer, is P required to plead further to be able to use the "last clear chance" defense at trial? A. Yes, P must serve a "reply" raising the "last clear chance" defense. B. Yes, P must assert a "crossclaim" raising the "last clear chance" defense. C. Yes, P must assert a "counterclaim" raising the "last clear chance" defense D. No, P is not allowed to respond to D's assertion of P's contributory negligence; D's allegation of contributory negligence is automatically denied or avoided (e.g., by the "last clear chance" defense).

D. No, P is not allowed to respond to D's assertion of P's contributory negligence; D's allegation of contributory negligence is automatically denied or avoided (e.g., by the "last clear chance" defense).

Assume that P raises greyhound dogs and that D stole several dogs from P's kennel on P's land. P hired an investigator to track down the stolen dogs. The investigator found the dogs and secured their return. P wants to bring a common-law action against D to recover damages. What form of action should P use? A. Trespass on the case B. Conversion C. Distraint D. Trespass (de bonis asportatis)

D. Trespass (de bonis asportatis)

P, a citizen of State X, sues D, a citizen of State Y, in the U.S. District Court for the District of State Y. P's complaint asserts two claims for relief. One claim is for breach of a contract between P and D, for which P claims $100,000 in damages. The second claim is a factually and legally unrelated claim for an assault and battery allegedly committed by D against P, for which P seeks $200,000 in damages. Under the Federal Rules of Civil Procedure, are P's claims properly jointed? A. No, P's claims are improperly joined because they do not arise out of the same transaction or occurrence. B. No, P's claims are improperly joined because they do not involve common questions of law or fact C. No, P's claims are improperly joined for the reasons given in answers A and B, above. D. Yes, P's claims are properly joined

D. Yes, P's claims are properly joined

Assume that the following is used as part of discovery in a case pending in federal court: "The plaintiff asks the defendant to respond within 30 days to the following request, by admitting, for purposes of this action only and subject to objections to admissibility at trial, the truth of the following statement: 'The defendant's blood alcohol content was more than 0.08% when it was tested immediately after the accident.' " Under the Federal Rules, this is an example of what type of discovery device? A. an oral deposition B. an interrogatory C. a request for production D. a request for admission

D. a request for admission

Under the Federal Rules of Civil Procedure, parties have a duty of mandatory "automatic" disclosure of certain information. Which of the following does NOT have to be disclosed in the initial wave of those disclosures? A. information about potential witnesses B. damages C. insurance D. all physical or mental conditions affecting the parties

D. all physical or mental conditions affecting the parties

Consider the following description: A written statement for presentation to the court which admits for the sake of argument that the facts alleged in the complaint are true, but that the facts still do not constitute a cause of action or a valid claim for relief. Which of the following perform this function? A. motion for a more definite statement B. general demurrer C. motion to dismiss for failure to state a claim for relief upon which relief may be granted D. answers b and c, above, each fit this description and perform this function

D. answers b and c, above, each fit this description and perform this function

What was the name of the plaintiff's first pleading in a traditional action at common law? A. petition B. bill C. complaint D. declaration

D. declaration

Assume that P's neighbor, D, has been taking a short-cut across P's land. P has asked D to stop, but D continues to do so. D claims that D has the perfect right to go over the land because D, in fact, is the true owner of the portion of the land that D uses. If D were to commence a common-law action for the purpose of trying title to the disputed land, which one of the following forms of action should D use? A. Trespass on the case B. Replevin C. Trover D. Ejectment

D. ejectment

If a court has jurisdiction over a particular type or class of cases and no other court can validly exercise jurisdiction over cases within that class, what kind of jurisdiction is the court that has jurisdiction over such cases said to have? A. permanent jurisdiction B. original jurisdiction C. general jurisdiction D. exclusive jurisdiction

D. exclusive jurissdiction

What is the branch of federal subject-matter jurisdiction based on claims by plaintiffs arising under the Constitution, laws, or treaties of the United States called? A. diversity jurisdiction B. concurrent jurisdiction C. personal jurisdiction D. federal question jurisdiction

D. federal question jurisdiction

Assume that D illegally fishes on P's land, catches a very large fish, and subsequently wins a $20,000 prize in a contest using P's fish. Which form of action would P have been traditionally used to recover the $20,000 in a common-law action? A. trespass B. special assumpsit C. trover D. general assumpsit E. trespass on the case

D. general assumpsit

Assume that there has been a three-car collision and all of the drivers (A, B, and C) were injured. Driver A sues Driver B in federal district court, asserting Driver B's negligence caused Driver A's injuries. Assume that Driver B believes that Driver C is at fault and is liable for all or part of the claim asserted against Driver B. Which of the following would be the proper method to bring Driver C into the pending lawsuit between Driver A and Driver B? A. interpleader B. counterclaim C. crossclaim D. impleader

D. impleader

Assume that a pre-answer motion to dismiss in federal court relies on the following assertion: "The defendant does not reside in this district and no part of the events or omissions giving rise to the claim occurred in this district." What is the MOST LIKELY basis for this motion? A. lack of personal jurisdiction B. insufficient process C. Lack of subject matter jurisdiciton D. improper venue E. failure to state a claim upon which relief may be granted

D. improper venue

Which of the following statutes authorized the creation of the Federal Rules of Civil Procedure? A. the conformity act of 1872 B. the judiciary act of 1789 C. the Field Code D. the Rules Enabling Act of 1934

D. the Rules Enabling Act of 1934

Which of the following original writs/forms of action would have been traditionally used at common law for P to recover damages based on D-1's intentionally entering P's land for the purpose of fishing, using P's cabin without permission, and punching P in to nose? A. Replevin B. Trespass on the case C. covenant D. trespass E. Answers B and D are both correct

D. trespass

Assume that the defendant wants to raise the defense that the complaint fails to state a claim upon which relief may be granted in an action in federal district court. In light of Federal Rule 12(h)(2), when is the LATEST time that the defendant can properly do so? A. In a pre-answer motion to dismiss for failure to state a claim upon which relief can be granted. B. In the defendant's answer to the complaint. C. In a motion for judgment on the pleadings D. up to trial on the merits E. on appeal

D. up to trial on the merits

Put the following events in chronological order. Development of the Forms of Action Development of Equity Merger of Law and Equity in England Merger of Law and Equity and Creation of One Form of Action known as the Civil Action in the US

Development of the Forms of Action Development of Equity Merger of Law and Equity and Creation of One Form of Action Known as the Civil Action in the United States Merger of Law and Equity in England

Which of the following is NOT a correct statement about an oral deposition? A. An oral deposition is ordinarily the taking of an oral statement of a witness under oath before trial. An oral deposition has three basic purposes: (1) to find out what the witness knows; (2) to preserve that witness' testimony; and (3) establish a foundation for impeachment a witness. B. An oral deposition does not involve only favorable testimony. If a witness' testimony will be damaging to your client's case, you will want to know about it before trial. The last thing you want is to be surprised at trial with the damaging testimony. Therefore, it is usually wise to take that witness' deposition so that you will know in advance what that witness will say. C. An oral deposition does not take place in court. Instead, it usually takes place at an attorney's office. The attorney will ask the witness, or deponent, a series of questions about facts related to the lawsuit. The deponent must answer all proper questions under oath. The deponent does not ask any questions. He or she only answers questions. D. The entire oral deposition is preserved word-for-word by a court reporter, who is present throughout the session. A transcript is produced at a later time. The deponent can have his or her attorney present at the deposition, and the parties to the case can also be present. Judges are not present at depositions, except in special cases. E. All of the above are accurate

E. All of the above are accurate

With regard to counterclaims in code pleading, which of the following statements are CORRECT? A. Even if a potential counterclaim arose out of the same events or facts as the plaintiff's claim in a pending action, code-pleading systems did not normally compel a defendant to assert a counterclaim in the action; in other words, compulsory counterclaims did not exist in traditional code-pleading practice (but rules of finality might prevent the defendant from asserting the related claim in a separate proceeding if the defendant lost in the initial action). B. Counterclaim practice under code pleading and the Federal Rules of Civil Procedure are basically the same. C. Code-pleading systems permitted counterclaims to be asserted by the defendant (1) when the counterclaim was in the same legal category as the plaintiff's claim even if the counterclaim was factually unrelated to the plaintiff's claim and (2) when the counterclaim was factually related to the plaintiff's claim. D. Answers A, B, and C are all correct. E. Answers A and C are correct.

E. Answers A and C are correct.

Assume that P sues D for damages in a federal district court. P asserts that D was negligent in operating D's automobile and, as a result, injured P and damaged P's automobile. D serves an answer admitting that the accident occurred, denying D's negligence, asserting P's contributory negligence as an affirmative defense, and asserting a permissive counterclaim (designated as such) alleging that P breached a contract to sell property to D. With regard to D's contract counterclaim, P believes that it was D who breached the contract and believes that D is liable to P for the breach. Under the Federal Rules of Civil Procedure, what action, if any, may or must to P take with regard to D's permissive counterclaim? A. P is required to assert a "counterclaim" against D for breach of contract if P wants to preserve that claim. B. P is permitted to assert a "counterclaim" against D for breach of contract but is not required to do so; P can bring a separate action against D if P defeats D's counterclaim in the present action. C. P is not allowed to respond to D's permissive counterclaim; all of D's allegations are taken as denied or avoided. D. P must admit or deny the allegations of D's permissive counterclaim by means of an "answer" to a counterclaim. E. Answers A and D are both correct.

E. Answers A and D are both correct.

Assume that P and D have had an accident and P is now suing D for damages based on D's alleged negligence. Assume that D believes that P was intoxicated at the time of the accident, which, if true, would make the plaintiff "contributorily negligent" and would be a complete bar to P's recovery under the applicable law. How would contributory negligence be properly raised by D? A. By a dilatory plea in a common law action B. by a general demurrer in a common law action C. By means of a plea in a common-law action admitting the allegations of the declaration and presenting the new matter (contributory negligence) to avoid the legal effect of P's allegations. D. As an affirmative defense in D's answer under the Federal Rules of Civil Procedure. E. Answers C and D are both correct

E. Answers C and D are both correct

Which of the following statements about subject-matter jurisdiction, if any, is NOT correct? A. Subject-matter jurisdiction is the court's power to hear the class of cases to which the plaintiff's suit belongs. B. If a court has exclusive jurisdiction over a class of cases, no other court can validly exercise jurisdiction over cases within the class. C. Every state has at least one court of general jurisdiction; courts of general jurisdiction possess the broadest subject-matter authority of all the courts within a state; and they are sometimes referred to as "repository courts" because if no other court within a state can be found with subject-matter jurisdiction over a case, the court of general jurisdiction will be able to hear the case. D. When a court has concurrent jurisdiction with another court, the plaintiff may choose to sue in either of the courts. E. Like venue and personal jurisdiction, a defendant can waive the objection to subject-matter jurisdiction by failing to raise that objection in a timely manner. F. All of the above are correct

E. Like venue and personal jurisdiction, a defendant can waive the objection to subject-matter jurisdiction by failing to raise that objection in a timely manner.

Assume that the defendant moves to dismiss an action in federal district court on the ground that the court lacks personal jurisdiction over the defendant pursuant to Federal Rule 12(b)(2). The defendant's motion is denied. Which of the following actions could the defendant then properly take? A. The defendant could then move to dismiss the action in another pre-answer motion on the ground that venue of the action is improper pursuant to Federal Rule 12(b)(3). B. The defendant could then move to dismiss the action in another pre-answer motion on the ground that the complaint fails to state a claim upon which relief may be granted pursuant to Federal Rule 12(b)(6). C. The defendant could then serve an answer raising the defense that there was insufficient service of process. D. All of the above (Answers A, B, and C) are actions that the defendant could properly take. E. None of the above (Answers A, B, and C) are actions that the defendant could properly take.

E. None of the above (Answers A, B, and C) are actions that the defendant could properly take.

Which of the following, if any, is NOT associated with impleader? A. Third-party complaint and third-party answer B. Persons who may be liable to a defending party for all or part of a claim asserted against the defending party C. contribution D. Third-party plaintiff and third-party defendant E. all of the above are associated with impleader

E. all of the above are associated with impleader

To prevent irreparable harm or to preserve the status quo after the defendant has had an opportunity to be heard until a full adjudication on the merits can be had

Preliminary injunction

To preserve the status quo in an emergency situation until the court can conduct a hearing in which the defendant can be present

Temporary restraining order

To seize property from the defendant and have it brought into the custody of the court

attachment

To issue a warning to a third party directing the third party not to pay the defendant's assets in the third party's possession to the defendant and requiring the third party to hold them until further order from the court

garnishment

To have a neutral third party manage property that is the subject of the action

receivership

To seize the specific personal property in the defendant's possession to which the plaintiff is immediately entitled

replevin