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CIVIL PROCEDURE - FINAL EXAM
A 55-year-old Chef had a contract for employment but was fired before the contract term ended. The Chef sued the Restaurant Owner in federal court claiming he was fired in violation of federal law prohibiting age discrimination. Two months earlier, the Restaurant Owner sued the Chef in state court for violating the terms of his employment contract, which the Restaurant Owner claims resulted in the firing. Both cases are still pending. Assume the federal court would have jurisdiction over both claims and both parties. Is the Restaurant Owner's breach of contract claim a compulsory counterclaim in the federal court action? A: No, because there is no logical relationship between the breach of contract claim and the age discrimination claim. B: No, because the breach of contract claim is already the subject of a pending action. C: Yes, because it would be more efficient to join the related breach of contract and age discrimination claims in the same lawsuit and the rule allows permissive joinder of claims. D: Yes, because the Restaurant Owner had the breach of contract claim at the time the federal court action was commenced.correct answerB: No, because the breach of contract claim is already the subject of a pending action. Homeowner sues Contractor One and Contractor Two for breach of contract in federal court. Homeowner claims the contractors failed to build a swimming pool in his backyard according to the contract specifications. Contractor Two asserts a claim against Contractor One for indemnity, claiming the contract requires Contractor One to pay for any judgment against Contractor Two. Contractor One asserts a claim against Contractor Two for breach of another contract to build a pool for another homeowner. Assume the court has subject matter jurisdiction over all claims. Is the claim asserted by Contractor One against Contractor Two a proper crossclaim? A: Yes, because Contractor One's claim presents a common question of law or fact. B: Yes, because Contractor One's claim arises from the same transaction or occurrence as the opposing party's claim. C: No, because claims between defendants may only be for contribution or indemnity.
D: No, because Contractor One's claim does not arise from the same transaction or occurrence as the opposing party's claim.correct answerD: No, because Contractor One's claim does not arise from the same transaction or occurrence as the opposing party's claim. A birdwatcher sued Hunter #1 for negligence in federal court, claiming Hunter #1 shot the birdwatcher in the woods. Hunter #1 was hunting on the day in question, but knows that Hunter #2 actually shot the birdwatcher. Hunter #1, as third-party plaintiff, served Hunter #2 with a summons and complaint, seeking to add Hunter #2 as a third-party defendant, and claiming that Hunter #1 is not liable to the birdwatcher, but that Hunter #2 is. Assume the court has subject matter jurisdiction over all claims. Is Hunter #1's impleader of Hunter #2 proper? A: Yes, because Hunter #2 may be liable to the plaintiff for all or part of the birdwatchers damages. B: Yes, because Hunter #2 could have been properly joined under Rule 20. C: No, because Hunter #1 did not allege that Hunter #2 is or may be liable to Hunter #1 for all or part of the birdwatchers claims against Hunter #1. D: No, because the claim by Hunter #1 does not arise out of the same transaction or occurrence as the birdwatchers claim against Hunter #1.correct answerC: No, because Hunter #1 did not allege that Hunter #2 is or may be liable to Hunter #1 for all or part of the birdwatcher's claims Homeowner, a citizen of Texas, sues Contractor One, a citizen of Oklahoma in federal court for breach of contract and claims damages in excess of $100,000 claiming that Contractor One improperly disposed of hazardous waste while working on Homeowner's home. Contractor One impleads Contractor Two, a citizen of Louisiana, claiming that Contractor Two is or may be liable to Contractor One for all or part of plaintiff's damages against Contractor One. Does the court have subject matter jurisdiction over the claim between Contractor One and Contractor Two?
14.correct answerB: Yes, because Homeowner's claim against Contractor Two is between diverse parties and the amount in controversy exceeds Homeowner, a citizen of Texas, sues Contractor One, a citizen of Oklahoma in federal court for breach of contract and claims damages in excess of $100,000 claiming that Contractor One improperly disposed of hazardous waste while working on Homeowner's home. Contractor One impleads Contractor Two, a citizen of Texas, claiming that Contractor Two is or may be liable to Contractor One for all or part of plaintiff's damages against Contractor One. Homeowner amends her complaint to add a claim against Contractor Two, alleging the same breach of contract action and damages. Does the court have subject matter jurisdiction over the claim between Homeowner and Contractor Two? A: Yes, because Homeowner's claim against Contractor Two arises out of a common nucleus of operative facts such that it forms the same case or controversy. B: Yes, because Homeowner's claim against Contractor Two is between diverse parties and the amount in controversy exceeds the sum or value of $75,000. C: No, because Homeowner's claim against Contractor One is premised solely on diversity jurisdiction and the claim against Contractor Two is a claim by a plaintiff against a person made a party under Rule 14. D: No, because both Homeowner's and Contractor One's claims against Contractor Two are premised on diversity jurisdiction and both are claims against a person made a party under Rule 14.correct answerC: No, because Homeowner's claim against Contractor One is premised solely on diversity jurisdiction and the claim against Contractor Two is a claim by a plaintiff against a person made a party under Rule 14.
Homeowner, a citizen of Texas, sues Contractor One, a citizen of Oklahoma in federal court for violating the Clean Water Act, a federal law, and breach of contract and claims damages in excess of $100,000 claiming that Contractor One improperly disposed of hazardous waste while working on Homeowner's home. Contractor One impleads Contractor Two, a citizen of Texas, claiming that Contractor Two is or may be liable to Contractor One for all or part of plaintiff's damages against Contractor One. Homeowner amends her complaint to add a claim against Contractor Two, alleging the same breach of contract action. Does the court have subject matter jurisdiction over the claim between Homeowner and Contractor Two? A: Yes, because Contractor One's claim against Contractor Two is premised on diversity of citizenship jurisdiction. B: Yes, because Homeowner's claims against Contractor Two are not premised solely on diversity jurisdiction and the Homeowner's claim against Contractor Two arises out of a common nucleus of operative facts such that it forms the same case or controversy. C: No, because one of Homeowner's claims against Contractor One is premised on diversity jurisdiction and the claim against Contractor Two is a claim by a plaintiff against a person made a party under Rule 14. D: No, because Homeowner's and Contractor One's claims against Contractor Two are premised on diversity jurisdiction and both are claims against a person made a party under Rule 14.correct answerB: Yes, because Homeowner's claims against Contractor Two are not premised solely on diversity jurisdiction and the Homeowner's claim against Contractor Two arises out of a common nucleus of operative facts such that it forms the same case or controversy. Homeowner, a citizen of Texas, sues Contractor One, and Contractor Two, both citizens of Texas, in federal court
of $50,000 claiming that Contractor One improperly disposed of hazardous waste while working on Homeowner's home. Which of the following is the best argument, if true, to convince the court to decline to exercise jurisdiction over the breach of contract claim? A: The breach of contract claim is not between citizens of different states. B: The amount in controversy suggests that the breach of contract claim is not important enough for the federal court to hear. C: Texas law on whether a breach of contract claim is available under these facts is unsettled or conflicting and a Texas state court should decide this issue of state law. D: Joining both claims will create additional time, expense, and effort for the court and parties at trial.correct answerC: Texas law on whether a breach of contract claim is available under these facts is unsettled or conflicting and a Texas state court should decide this issue of state law. Complaints and answers are examples of which of the following? A: Pleadings. B: Discovery. C: Motions. D: Briefs.correct answerA: Pleadings. The plaintiff's complaint alleges that the defendant agreed to sell his house to plaintiff for $100,000, and that the defendant sold the house to another person, even though the plaintiff was prepared to purchase the house. The defendant answered the complaint, claiming that the contract is unenforceable by reason of fraud but does not state any particulars of the alleged fraud. If the plaintiff moves to dismiss the defendant's fraud defense, the court should: A: Grant the motion, because an accusation of fraud is an immaterial and scandalous matter. B: Grant the motion, because the defendant has failed to plead its fraud allegation with particularity. C: Deny the motion, because only allegations of fraud that are claims, not defenses, must be alleged with particularity.
D: Deny the motion, because the defendant gave the plaintiff adequate notice of its fraud defense.correct answerB: Grant the motion, because the defendant has failed to plead its fraud allegation with particularity. A plaintiff's complaint alleges that on January 29, 2016, the plaintiff was riding his bicycle on Main Street in Dallas. The complaint further alleges that the defendant was operating his car on Main Street, a public road, and owed the plaintiff a duty to act reasonably. The complaint further alleges that the defendant failed to act as a reasonable driver by suddenly swerving and striking the plaintiff, injuring him severely. The plaintiff's complaint requests money damages in his prayer for relief. If the defendant moves to dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted, is the court likely to grant the motion? A: Yes, because the complaint does not explicitly state the name of the plaintiff's claim or cause of action. B: Yes, because the complaint states only conclusory allegations that fail to raise a plausible claim for relief. C: No, because the complaint states facts that support a cause of action for negligence or possibly battery. D: No, because the complaint may only be dismissed if no set of facts consistent with the allegations would entitle the plaintiff to relief.correct answerC: No, because the complaint states facts that support a cause of action for negligence or possibly battery. Husband sues Driver for negligent infliction of emotional distress and in the complaint alleges that Driver ran off the road and struck Husband's Wife while Wife was gardening in the front yard. The relevant law, known as the "bystander rule," requires that the plaintiff "witness" the injury in order to recover for negligent infliction of emotional distress. The complaint also alleges that Husband witnessed the injury because he was in the back yard and heard the impact and his Wife's screams coming from the front yard and suffered emotional harm. Immediately after being served with process but before answering, the Driver moves to dismiss Husband's claim for negligent infliction of emotional distress, arguing that the law governing the "bystander rule" requires the plaintiff to visually witness the injury when it occurs. The judge researches the issue and determines that the bystander rule requires the plaintiff to visually witness the injury. The court should:
Defendant performed as promised. Which of the following is the best description of the Defendant's ability to assert as defenses both that no contract existed and that Defendant did not breach it? A: Defendant may plead both defenses, as long as they are both labeled as affirmative defenses. B: Defendant may plead both defenses. C: Defendant may plead only one defense because they are inconsistent. D: Defendant may plead both defenses, but Plaintiff will be able to have one defense stricken. Rationale: B is the best answer because Rule 8 specifically allows inconsistent pleadings in the alternative. Thus, C and D are incorrect. A is not correct because neither of these matters qualify as affirmative defenses.correct answerB: Defendant may plead both defenses. A homeowner's home was damaged by an earthquake. The homeowner hired an attorney, who filed suit on the homeowners behalf against a natural gas company, claiming that its drilling operations had caused the earthquake that damaged his home. The suit was filed in federal court, and subject matter jurisdiction was properly based on diversity. The company defended on the basis of a law called the "Acts of God" Act, which states that earthquakes are "Acts of God" that cannot be the basis for civil liability. The company properly served and filed a motion for Rule 11 sanctions against the homeowner and his counsel for filing a complaint with frivolous legal contentions. Which of the following is the homeowner's counsel's best argument in response to the Rule 11 motion for sanctions? A: I was unaware of the existence of the Acts of God Act. B: The complaint is not being presented merely for the purpose of harassing the company. C: My legal contentions are warranted by a nonfrivolous argument to modify existing law to account for earthquakes caused by a
person or business entity rather than by an unpredictable Act of God. D: The court only has the authority to sanction the homeowner if the factual contentions lack evidentiary support.correct answerC: My legal contentions are warranted by a nonfrivolous argument to modify existing law to account for earthquakes caused by a person or business entity rather than by an unpredictable Act of God. Homeowner's home was damaged when an earthquake struck. The relevant law, called the "Acts of God" doctrine states that earthquakes, tornadoes, hurricanes, and similar events cannot create any basis for civil liability on the part of persons or entities. Homeowner's counsel filed suit against Natural Gas Co. in federal court, claiming that its drilling operations caused the earthquake and that the law should recognize an exception to the Acts of God doctrine for events caused by a party. The court issued a sua sponte order to show cause why Homeowner should not be sanctioned under Rule 11 for filing a frivolous claim in his complaint. The order gave three days' notice of the hearing. After the hearing, the court sanctioned Homeowner in the amount of $500. Which of the following is the best argument to overturn the sanctions on appeal? A: Rule 11 prohibits sanctions against represented parties, like Homeowner, for allegedly frivolous legal contentions. B: The court failed to give at least twenty-one days' notice to Homeowner before holding a Rule 11 sanctions hearing. C: The court has no authority to sanction Homeowner without a motion filed by Natural Gas Co. D: The court did not first give Homeowner an opportunity to withdraw the complaint before entering sanctions.correct answerA: Rule 11 prohibits sanctions against represented parties, like Homeowner, for allegedly frivolous legal contentions. Plaintiff, represented by counsel, sues a Defendant for emotional distress in federal court in Texas. Plaintiff's complaint alleges that he witnessed Defendant's car skid off the road and hit his dog but that Plaintiff was not physically injured. Two years before the accident, the Texas Supreme Court held that
Lender fraudulently induced the Student to enter into the loan agreement, rendering the loan agreement invalid. The parties tried the federal case, the Lender prevailed, and the federal judge entered a final judgment for the Lender for the amount of the missed payments. The student then fell behind on payments again in November and December and the Lender sued the Student in state court for failure to make payments under the same loan agreement and the Student defended on the grounds that the Student was fraudulently induced into the loan agreement. The Lender moved for summary judgment in the state court on the grounds of issue preclusion. Should the court grant the Lender's motion for summary judgment based on issue preclusion in the state court action? A: Yes, because the claim for fraudulent inducement arises from the same operative facts as the claim for the Student's failure to pay. B: Yes, because the federal court actually litigated and necessarily decided the issue of whether the loan agreement was valid. C: No, because the federal court did not actually litigate and necessarily decide the issue of whether the loan agreement was valid. D: No, because the state court action has not reached a final judgment yet.correct answerB: Yes, because the federal court actually litigated and necessarily decided the issue of whether the loan agreement was valid. A Student took out a federal loan to pay for school from Lender. The Student failed to make payments for January through March pursuant to a loan agreement and the Lender sued the Student in federal court for failure to make loan payments on a federal loan as agreed. While the federal action was pending, the Student sued the Lender for fraudulent inducement in state court, claiming that the loan agreement was invalid. The state case proceeded to trial first and the jury entered a verdict in favor of the Lender, finding that the loan agreement was valid. The state court judge entered a final judgment on the jury verdict. The Student then amended his answer to allege an affirmative defense that the loan agreement was invalid based on fraudulent inducement. The Lender then moved for summary judgment in the federal court on the Student's affirmative defense of fraudulent inducement on the grounds that the Student was precluded by issue preclusion from defending on that ground. Should the court grant the Lender's motion for summary judgment based on issue preclusion? A: Yes, because the defense of fraudulent inducement was a compulsory counterclaim in the federal action. B: Yes, because the state court actually litigated and necessarily decided the issue of whether the loan agreement was valid.
C: No, because the federal court did not actually litigate and necessarily decide the issue of whether the loan agreement was valid. D: No, because state court judgments cannot have preclusive effec in federal court .correct answerB: Yes, because the state court actually litigated and necessarily decided the issue of whether the loan agreement was valid. A consumer sued a product manufacturer for a strict product liability claim, alleging there was a design defect in the roof of the car, causing it to crush too far when the car rolled over because it was made of weak metal. While the first lawsuit was still pending the consumer sued the same product manufacturer for a manufacturing defect in the roof of the car, claiming that the roof's metal was not properly welded to the body of the car, causing it to crush too far in the same rollover accident. The jury in the manufacturing defect case came to a verdict agreeing with the consumer that the roof's metal had been negligently welded. The judge entered a final judgment on the jury's verdict in the manufacturing defect case. Then, the product manufacturer in the design defect case moved for summary judgment on the basis of claim preclusion. How should the court rule on the product manufacturer's motion? A: Grant it, because the strict liability design defect and negligent manufacturing defect claims are considered the same claim. B: Grant it, because the plaintiff failed to raise a genuine dispute of fact as to whether the roof was made of unreasonably dangerous weak metal. C: Deny it, because the strict liability design defect and negligent manufacturing defect claims are not the same claim. D: Deny it, because the first case in time has not come to a final judgment yet.correct answer A Landlord sued to evict a Tenant for not paying rent for January through March. After receiving notice of the lawsuit, the Tenant proved she paid the Landlord using copies of cancelled checks and the trial judge signed a final judgment in favor of the Tenant. After failing to pay rent due in April, the Landlord sued the Tenant again for eviction and the tenant moved for summary judgment on the basis of claim preclusion. How should the court rule on the Tenant's motion?
A: Deny it because the amendment would be futile because the limitations defense is barred by defendant's conduct. B: Grant it because the court can postpone the trial to cure any preparation prejudice and allow the plaintiff to conduct the discovery needed to establish the bar to the statute of limitations defense. C. Grant it because leave to amend pleadings should be freely granted. D: Grant it because the plaintiff has failed to show the defendant engaged in any undue delay.correct answerB: Grant it because the court can postpone the trial to cure any preparation prejudice and allow the plaintiff to conduct the discovery needed to establish the bar to the statute of limitations defense. Customer timely sues Appliance Store in federal court for selling a dryer with a plastic vent hose, claiming that the plastic vent hose started a fire in Customer's house. Six months later, during discovery, the parties tested the surviving portions of the plastic hose to determine when it would catch fire and, as a result, the remainder of the hose was destroyed. As a result of that test, Customer's expert learns that lint accumulation in the hose also likely caused the fire. Immediately after the test and just before limitations expires, Customer moves to amend his complaint to add a claim against Hose Manufacturing, alleging that the design of its dryer hose allowed lint accumulation that also caused or contributed to the fire. What is Hose Manufacturing's best argument in opposition to the motion for leave to amend? A: Hose Manufacturing did not get notice of the claim within 90 days of service of the original complaint. B: Hose Manufacturing would be prejudiced because it would have to defend itself against a claim so close to the expiration of limitations. C: Hose Manufacturing did not know, nor should it have known, that but for a mistake concerning its identity, Customer would
have sued it. D: Hose Manufacturing is prejudiced in defending itself because the remaining portions of the allegedly defective hose have been destroyed during testing in which it did not have an opportunity to participate.correct answerD: Hose Manufacturing is prejudiced in defending itself because the remaining portions of the allegedly defective hose have been destroyed during testing in which it did not have an opportunity to participate. A patient sued a hospital in federal court for negligence in performing the patients hip replacement surgery. The complaint, filed one month before the limitations period expired, alleged that the hospitals employees improperly installed the replacement hip, causing a post-operative infection that weakened his hip and made him more likely to fall, and that he did fall during rehabilitation therapy during his stay at the hospital. A year later, during discovery, the patient learned that the area where he fell was wet because the hospital staff failed to clean the area. The patient immediately filed a motion for leave to amend his complaint to add the claim that the hospital was negligent in maintaining the premises, which is subject to the same statute of limitations as the negligence claim in the patient's original complaint. How should the court rule on the motion for leave to amend? A: Deny the motion, because amendment would be futile, as the new claim would be barred by the statute of limitations. B: Deny the motion, because the hospital did not get notice of the new claim before limitations expired or within the period for serving a summons and complaint. C: Grant the motion, because the new claim regarding negligently maintaining the premises arises out of the same occurrence set out in the original complaint.
defense of lack of personal jurisdiction. Assuming Dharma has a valid personal jurisdiction defense, if Dharma later moves to dismiss for lack of personal jurisdiction, how should the court rule? A: Deny the motion, because lack of personal jurisdiction must be raised by a pre-answer motion. B: Deny the motion, because lack of personal jurisdiction must be included in her original answer. C: Grant the motion, because personal jurisdiction cannot be waived. D: Grant the motion, because Dharma raised her personal jurisdiction defense in an amendment allowed as a matter of coursecorrect answerD: Grant the motion, because Dharma raised her personal jurisdiction defense in an amendment allowed as a matter of course Plaintiff is beaten by a police officer, but isnt sure who beat him. He sues Officer Jones, but Officer Smith actually beat him. Officer Smith heard that Officer Jones had been sued by Plaintiff, and that Officer Smith realizes that Plaintiff sued the wrong officer. Officer Smith learned this information about the lawsuit 6 months after suit had been filed against Officer Jones, and 5 months after the statute of limitations expired. At precisely that time, Plaintiff moves to amend the complaint to substitute Officer Smith for Officer Jones. Will the Motion be granted? A: Yes, because plaintiff was diligent in filing his motion to amend. B: Yes, because Officer Smith learned about the case within the time period provided by Rule 4m, even though limitations had expired. C: No, because the amendment would be futile as barred by limitations because the plaintiff did not make a mistake about the identity of the proper defendant. D: No, because the amendment would be futile as barred by limitations because the proper defendant did not timely learn about
the suit either before limitations expired or during the period provided for under Rule 4m.correct answerD: No, because the amendment would be futile as barred by limitations because the proper defendant did not timely learn about the suit either before limitations expired or during the period provided for under Rule 4m. Plaintiff filed a claim against defendant for patent infringement in state court, which was dismissed for lack of subject matter jurisdiction. Plaintiff filed a second suit in federal court for breach of contract, claiming the same defendant owed royalties for infringing on the same patent. After discovery closed and one day before trial, plaintiff moved for the first time to amend his complaint. Plaintiff sought leave to add a patent infringement claim for a different patent, even though plaintiff knew about the infringing activity before he filed the first state court suit. The statute of limitations has not expired on either patent infringement claim, but the statute of limitations has expired on the breach of contract claim. What is the best argument that leave to amend should be denied? A: Plaintiff's undue delay has potentially caused preparation prejudice and sounds like bad faith. B: Plaintiff's amendment would be futile because the second patent infringement claim would not relate back to the time the breach of contract action was filed. C: Plaintiff has amended his complaint too many times. D: Plaintiff's amendment would be futile because the defendant did not get timely notice of the second patent infringement claim; thus, it would not relate back to the time of filing the breach of contract action.correct answerA: Plaintiff's undue delay has potentially caused preparation prejudice and sounds like bad faith. Consumer sued a manufacturer for manufacturing a defective product. Which of the following is most likely something that must be pled as an affirmative defense?
