Civil Procedure MBE Exam
Prior to trial, the attorney for the farmers conducted oral depositions of 12 employees of
the manufacturer. Some of these depositions occurred before the attorney had complied
with the initial trial disclosure requirements. Due to some conflicting testimony as a
result of the initial 12 depositions, the attorney deposed three of the employees directly
involved with designing the combine a second time. The manufacturer has objected to
the attorney's actions.
Which of the attorney's actions require leave of the court? - answer All three of the
attorney's actions in deposing the manufacturer's employees.
Under Rule 30, a party may take the deposition of any party or nonparty witness at any
time after the party has made its mandatory initial disclosures pursuant to Rule 26(a).
Without leave of the court, the plaintiffs and the defendants, each as a group, are limited
to 10 depositions by oral or written examination. Unless the parties agree to the
deposition, leave of the court must be obtained to (i) exceed the 10-deposition limitation,
(ii) depose a witness a second time, or (iii) depose a person before the deposing party
has complied with its initial disclosure requirements under Rule 26(a).
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? - answerYes, because of
the newly discovered evidence.
One ground for granting a new trial upon motion by a party is that newly discovered
evidence that existed at the time of trial was excusably overlooked and would likely
have altered the outcome of the trial. Here, the newly discovered evidence existed at
the time of the trial and was excusably overlooked by the corporation. In addition, it is
likely that the evidence would have reestablished the corporation's defense and thereby
would have altered the outcome of the trial. Therefore, the court should grant the
corporation's motion.
The mistress sued the married woman in federal court. The court has ordered both
parties to be available for a pretrial conference to consider a settlement, but the women
refuse because they despise one another.
, Can the court direct the women or their representatives to appear at the pretrial
conference? - answerYes, because the pretrial conference may facilitate a settlement
between the women.
Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for
pretrial conferences for such purposes as expediting disposition of the action, effective
case management, and facilitating settlement. The court may require that a party or its
representative be present or reasonably available by telephone or by more
sophisticated electronic means to consider possible settlement. If counsel or a party
fails to appear, fails to participate in good faith, or fails to obey a pretrial conference
order, then the court may generally impose the same sanctions as those permitted for
failure of a party to comply with a discovery order, including contempt of court or
dismissal of an action. Here, the court can direct the women to be available for the
pretrial conference because it may facilitate a settlement and expedite disposition of the
action.
The third party filed a motion to dismiss based on a lack of personal jurisdiction. The
court denied this motion. Twenty days after receiving notice of the court's ruling, the
third party served an answer on the relative. In the answer, the third party asserted for
the first time that she recorded the deed without notice of the mortgage. The relative
responded that the third party had waived this defense.
Is the relative correct? - answerYes, because the third party's assertion of this defense
was untimely.
When a defendant files a pre-answer motion under Rule 12, such as a motion to
dismiss for lack of personal jurisdiction, the defendant has 14 days after receiving notice
of the court's decision on this motion to file its answer.
Is the citizenship of the assignor of a claim determinative for purposes of ascertaining
diversity jurisdiction? - answerFor purposes of determining diversity jurisdiction, there is
no rule that ignores the citizenship of the assignee of a claim. When the assignment of a
claim is a business transaction rather than a collusive act to create diversity jurisdiction
(as evidenced in this case by the relinquishment of all rights by the hospital), the
assignee is the real party in interest whose citizenship determines the existence of
diversity.
A sports fan filed a state court action, based on an alleged assault and battery at a
sporting event, against a private security officer and his employer.
The forum state has multiple federal judicial districts. On the basis of diversity
jurisdiction, the defendants removed the action from state court to the federal district
court for the district in which the state court was located. The fan is domiciled in the
forum state, but neither the fan's residence nor the sporting venue is located in the
district in which the federal court is located. The officer is domiciled in a neighboring
Prior to trial, the attorney for the farmers conducted oral depositions of 12 employees of
the manufacturer. Some of these depositions occurred before the attorney had complied
with the initial trial disclosure requirements. Due to some conflicting testimony as a
result of the initial 12 depositions, the attorney deposed three of the employees directly
involved with designing the combine a second time. The manufacturer has objected to
the attorney's actions.
Which of the attorney's actions require leave of the court? - answer All three of the
attorney's actions in deposing the manufacturer's employees.
Under Rule 30, a party may take the deposition of any party or nonparty witness at any
time after the party has made its mandatory initial disclosures pursuant to Rule 26(a).
Without leave of the court, the plaintiffs and the defendants, each as a group, are limited
to 10 depositions by oral or written examination. Unless the parties agree to the
deposition, leave of the court must be obtained to (i) exceed the 10-deposition limitation,
(ii) depose a witness a second time, or (iii) depose a person before the deposing party
has complied with its initial disclosure requirements under Rule 26(a).
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? - answerYes, because of
the newly discovered evidence.
One ground for granting a new trial upon motion by a party is that newly discovered
evidence that existed at the time of trial was excusably overlooked and would likely
have altered the outcome of the trial. Here, the newly discovered evidence existed at
the time of the trial and was excusably overlooked by the corporation. In addition, it is
likely that the evidence would have reestablished the corporation's defense and thereby
would have altered the outcome of the trial. Therefore, the court should grant the
corporation's motion.
The mistress sued the married woman in federal court. The court has ordered both
parties to be available for a pretrial conference to consider a settlement, but the women
refuse because they despise one another.
, Can the court direct the women or their representatives to appear at the pretrial
conference? - answerYes, because the pretrial conference may facilitate a settlement
between the women.
Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for
pretrial conferences for such purposes as expediting disposition of the action, effective
case management, and facilitating settlement. The court may require that a party or its
representative be present or reasonably available by telephone or by more
sophisticated electronic means to consider possible settlement. If counsel or a party
fails to appear, fails to participate in good faith, or fails to obey a pretrial conference
order, then the court may generally impose the same sanctions as those permitted for
failure of a party to comply with a discovery order, including contempt of court or
dismissal of an action. Here, the court can direct the women to be available for the
pretrial conference because it may facilitate a settlement and expedite disposition of the
action.
The third party filed a motion to dismiss based on a lack of personal jurisdiction. The
court denied this motion. Twenty days after receiving notice of the court's ruling, the
third party served an answer on the relative. In the answer, the third party asserted for
the first time that she recorded the deed without notice of the mortgage. The relative
responded that the third party had waived this defense.
Is the relative correct? - answerYes, because the third party's assertion of this defense
was untimely.
When a defendant files a pre-answer motion under Rule 12, such as a motion to
dismiss for lack of personal jurisdiction, the defendant has 14 days after receiving notice
of the court's decision on this motion to file its answer.
Is the citizenship of the assignor of a claim determinative for purposes of ascertaining
diversity jurisdiction? - answerFor purposes of determining diversity jurisdiction, there is
no rule that ignores the citizenship of the assignee of a claim. When the assignment of a
claim is a business transaction rather than a collusive act to create diversity jurisdiction
(as evidenced in this case by the relinquishment of all rights by the hospital), the
assignee is the real party in interest whose citizenship determines the existence of
diversity.
A sports fan filed a state court action, based on an alleged assault and battery at a
sporting event, against a private security officer and his employer.
The forum state has multiple federal judicial districts. On the basis of diversity
jurisdiction, the defendants removed the action from state court to the federal district
court for the district in which the state court was located. The fan is domiciled in the
forum state, but neither the fan's residence nor the sporting venue is located in the
district in which the federal court is located. The officer is domiciled in a neighboring
