Test
Civil Procedure Multiple Choice
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Preguntas del test (25)
1Bert was driving north on Hillcrest Road in Dallas when his car collided with Ernie's car, driving west on Mockingbird Lane. Both Bert and Ernie suffered serious personal injuries, and both cars were damaged. Bert wants to sue Ernie in federal court in Dallas.
To meet the requirements of the Federal Rules of Civil Procedure, Bert's complaint:
Topic 1, Question 1- A(A) Must state facts sufficient to form a cause of action.
- B(B) Must state a claim in ordinary and concise language without repetition.
- C(C) Must plead facts but not evidence.
- D(D) Must be a short and plain statement of the claim showing that Bert is entitled relief.
2Ernie is annoyed about Bert's bogus annoyance claim. He believes that Bert personally is sincere but is nonetheless deluded about the claim; he spends a lot of time stuck in traffic jams around Dallas and is really tired of other people's irritating bumper stickers. Ernie has heard that Bert's lawyer is a nice guy and tries to do the right thing but got a D in Legal Research and prefers to avoid the library whenever possible. Ernie has a lot of friends who are lawyers (one of whom gave him the offending bumper sticker)_, and they have told him to investigate something called Rule 11. Does the annoyance claim violate Rule 11?
Topic 2, Question 10- A(A) Yes, it violates Rule 11(b)(1).
- B(B) Yes, it violates Rule 11(b)(2)
- C(C) Yes, it violates Rule 11(b)(3)
- D(D) No, Bert may get evidentiary support for the annoyance claim after a reasonable opportunity for further investigation or discovery.
3Bert was driving north on Hillcrest Road in Dallas when his car collided with Ernie's car, driving west on Mockingbird Lane. Both Bert and Ernie suffered serious personal injuries, and both cars were damaged.
Assume that Bert sues only Ernie, and that the complaint includes both negligence claims arising out of the car wreck and the claim for annoyance. Ernie wants to get rid of the annoyance claim. The best procedural vehicle for Ernie is:
Topic 2 question 9- AA motion to dismiss for failure to state a claim upon which relief can be granted.
- BA motion for summary judgment.
- CA motion for more definite statement.
- DA general demurrer
4Paul Payne sued Harris County Hospital (HCH) and Dr. Mel Practer in federal court in Houston, Texas, for providing Payne with negligent medical care after he suffered a cerebral stroke. Payne's federal complaint was prepared and filed in accordance with the federal rules. Similarly, Payne has complied with all federal procedural requirements in prosecuting his claims in federal court. Under Texas law, if a plaintiff fails to serve an expert report on each physician or health care provider not later than the 120th day after the claim was filed, the trial court must, on motion of the affected physician or health care provider, "enter an order of dismissal" with prejudice to the refiling of the claim. Expert report means a written report that provides a fair summary of the expert's opinions regarding applicable standards of care, how those standards were violated, and the causal relationship between the violation and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code § 74.301. Because Payne did not file any reports, both HCH and Dr. Practer have moved to dismiss Payne's claims with prejudice. The judge is trying to figure out how the Supreme Court's recent decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 130 S. Ct. 1431 (2010), might affect the question of whether the Texas law requiring expert reports applies in federal court. Which of the following is true?
Question 251 - No answer provided.- A(A) The correct result will turn on whether a majority of Supreme Court Justices would conclude that Rule 8's pleading requirements determine the issue of whether additional expert reports can be required.
- B(B) Some Justices will analyze that question based primarily on the language of the federal rule, and will then inquire whether Rule 8 "really regulates procedure." For them, the purpose of the state rule or its partially substantive purpose is not a relevant question.
- C(C) Some justices will decide whether Rule 8 governs by construing it in a way that avoids conflicts with important state regulatory interests, and since the Texas law is designed to protect defendants (and their insurers) from the expense of defending non-meritorious medical malpractice suits, that may lead those Justices to interpret the Texas and federal rules as compatible rather than conflicting.
- D(D) All of the above are correct (and a lot will turn on Justice Kagan's approach to this kind of Erie issue.)
5When is material protected from discovery by work product protection?
- A(A) When it is confidential material prepared by a party's representative.
- B(B) When it is prepared in anticipation of litigation or for trial by a party or by or for that party's representative.
- C(C) When it is a confidential communication between a party and that party's attorney.
- D(D) When it is prepared in anticipation of litigation or for trial by any person.
6Both Pyrnne/Holgrave and Nanny Nation will be hiring expert witnesses to testify in support of their claims and defenses. In the absence of a court order to the contrary, the following disclosures will be required regarding these experts:
50, No answer- A(A) Pyrnne/Holgrave must identify their expert witnesses. For each expert they must provide a report describing the expert's opinions and the basis for the opinions, the information considered by the expert in forming the opinions, any exhibits to be used while testifying, the expert's qualifications, the compensation to be paid the expert, and a list of other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. This must be done at least 90 days before the trial date. Nanny Nation must do the same within 30 days after Prynne/Holgrave's disclosure.
- B(B) Prynne/Holgrave must identify their expert witnesses. For each expert they must provide a report describing the expert's opinions and the basis for the opinions, the information considered by the expert in forming the opinions, any exhibits to be used and a list of other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. This must be done at least 90 days before the trial date. Nanny Nation must do the same thing simultaneously with Prynne/Holgrave's disclosure.
- C(C) The parties only need to make these disclosures about expert witnesses if specifically so ordered by the court.
- D(D) The parties need to make the disclosures described in Rule 26(a)(2) only with respect to one expert each.
7Which of the following is NOT required for a communication to be protected by the attorney-client privilege?
- A(A) The communication was made in confidence.
- B(B) The communication was for the purpose of securing legal advice.
- C(C) The communication was made in anticipation of litigation or for trial.
- D(D) The communication was not voluntarily revealed.
8Albert Riggs of Odessa, Texas had a full life that came to a peaceful end when he did not awaken on a cold November morning in 2010. For the last 15 years of his life, Albert worked as a petroleum engineer for Rough Rider Exploration Co. Part of his compensation included coverage under a Group Life Insurance Policy purchased by Rough Rider Exploration Co. for the benefit of certain highly paid employees. The policy was issued by Confederation Life, a Connecticut corporation having its principal office in Hartford, Connecticut. The policy provided a death benefit in the sum of $125,000 to Albert's spouse or another designated beneficiary. When Albert began work for the company, he designated his wife, Cookie Riggs, as his beneficiary. Some few years later Cookie and Albert divorced and Albert remarried Dorothy Riggs, but without changing beneficiaries. This was the status quo when Albert died. Both Cookie and Dorothy are Texas domiciliaries and both have made conflicting claims to the policy proceeds. Dorothy is aided by a Texas statute that de-designates ex-spouses as beneficiaries unless a de-designation would be contrary to the insured's intent.
In view of the conflicting claims, can Confederation Life bring suit against Cookie and Dorothy in federal court in a judicial district in Texas to determine who is entitled to the policy proceeds?- A(A) No, Confederation Life cannot interplay Cookie and Dorothy because there is no diversity of citizenship between Dorothy and Cookie.
- B(B) Yes, Rule 22 allows the interpleader of conflicting claimants, who do not need to be of diverse citizenship as between themselves.
- C(C) Yes, Rule 22 has liberalized the requirements for inter pleading conflicting claimants and Confederation Life may use interpleader to avoid double vexation and double liability.
- D(D) both (B) and (C) are correct.
9Morris has a claim for malicious prosecution against Boris resulting from Boris' complaint to the police. Morris also has a separate and unrelated claim against Doris for assault and battery. Morris wants to sue them in the same case to save time. May he?
- A(A) Morris' attempt to sue Boris and Doris in the same case should not survive a motion to dismiss for misjoinder of parties.
- B(B) Morris' attempt to sue Boris and Doris in the same case should not survive a motion for severance or for a separate trial.
- C(C) Morris can join both claims in the same action to avoid a multiplicity of suits.
- D(D) The trial judge has discretion to allow or to disallow joinder of the claims against Doris and Boris.
10Donald wants to bring a lawsuit against Rhona and Robin, his former assistants for breach of a contract that both Rhona and Robin signed. In addition, he wants to sue Robin for libel because one year ago Robin called Donald "an unscrupulous con artist with no morals and bad hair." In this situation, if Rhona filed a motion for dismissal or, in the alternative, separate trial of the libel claim based on misjoinder, how should the court rule on the motion?
- A(A) The motion to dismiss should be granted because Rhona is not concerned with the libel claim against Robin and joinder is improper for this reason.
- B(B) The motion to dismiss should be denied because Rhona and Robin are properly joined on the contract claim and Rule 18 does not require the libel claim to be related to the contract claim against them.
- C(C) Rhona's motion for dismissal based on misjoinder should be denied. However, to avoid any prejudice resulting from the joinder of the unrelated libel claim, the trial court has the discretion to try the libel claim and the contract claims separately.
- D(D) (B) and (C) are correct.
11Athena sued Aphrodite for slander, following a nasty dispute about the results of a beauty contest. Since Aphrodite also owes Athena money (she breached a contract to buy 1,000 copies of Athena's book, "It's Better to Be Smart", Athena combined both claims in a single federal lawsuit. Are the claims properly joined?
- A(A) No. These claims do not arise out of the same transaction or occurrence.
- B(B) Yes, Since there is only one party on each side, Rule 18 allows free joinder of claims and Rule 20's requirements do not apply.
- C(C) No. The rules do not allow tort and contract claims to be joined in the same lawsuit.
- D(D) Yes. Since both claims involve disagreements between the same two people, they automatically are considered to share a common question of law or fact.
12A statute called the Rules of Decision Act (RDA) has been part of federal law since 1789. It instructs federal courts to apply:
- A(A) "the laws of the several states," except where federal law otherwise requires or provides.
- B(B) "the common law of each state," except where federal law otherwise requires or provides.
- C(C) "federal law, both statutory and common law." in all cases in federal court.
- D(D) "the laws of the several states" to every issue in cases where jurisdiction is based on diversity of citizenship.
13In 1934, Congress passed the Rules Enabling Act (REA), which authorizes the Supreme Court to adopt rules of practice and procedure for the federal courts. In order for rules adopted pursuant to the REA to be valid:
- A(A) they must be "general rules of practice and procedure" or "rules of evidence."
- B(B) they must not "abridge, enlarge, or modify any substantive right."
- C(C) both (A) and (B) are required.
- D(D) they only need to be adopted following the proper procedure, because that means they have already been approved by both the Supreme Court and Congress.
14The Supreme Court case of Swift v. Tyson interpreted the RDA in a way that limited the circumstances under which federal courts were required to apply state law. Swift held that the phrase "laws of the several states" meant only:
- A(A) state statutes, and state law regarding rights and titles to things "having a permanent locality."
- B(B) state statutes, and cases decided by the state's highest court.
- C(C) state statutes, and state common law consistent with the national majority rule.
- D(D) state laws based on the law of England of 1789.
15Paris and Hector, who own adjacent farms, got into a boundary dispute that ultimately involved who was responsible for fence maintenance and crop damage caused by trespassing livestock. When Paris impounded one of Hector's cows, Hector filed a criminal complaint for cattle theft against Paris. After the criminal case was dismissed, Paris confronted Hector who retaliated by breaking Paris' nose and blackening both of his eyes. Paris (who is actually a citizen of a neighboring state) has brought suit against Hector in federal court for malicious prosecution and battery. Claiming misjoinder of claims, Hector has filed a motion for dismissal and an alternative motion for severance of the claims. How should the court rule?
- A(A) The motion must be denied because in a case involving only one plaintiff and one defendant, there can be no misjoinder of claims. Neither dismissal nor severance is permitted in the absence of misjoinder.
- B(B) The motion should be denied, but only because the claims arise from the same transaction or occurrence or series of transactions or occurrences and, hence, are properly joined.
- C(C) The motion to dismiss must be denied, but the motion to sever must be granted because the claims are unrelated and misjoinder is a basis for severance of unrelated claims.
- D(D) The trial judge has discretion to sever the claims or to dispose of them in the same proceeding.
16The primary difference between a motion for summary judgment and a motion for judgment as a matter of law at the close of all the evidence is:
- A(A) The standard the movant must meet.
- B(B) The non-movant's burden to avoid summary judgment.
- C(C) The record on which the court will base its decision.
- D(D) The nature of the court's review of the record.
17Prior to the U.S. Supreme Court's decision in Celotex Corp. v. Catrett a defendant moving for summary judgment based on the weakness in the plaintiff's case had to meet which of the following burdens before the plaintiff was required to respond?
- A(A). Demonstrate the existence of a fact issue regarding all elements of the plaintiff's cause of action.
- B(B) Negate some element of the plaintiff's cause of action.
- C(C) Negate each element of the plaintiff's cause of action.
- D(D) Claim that some element of the plaintiff's cause of action would lack evidentiary support.
18Bush filed a diversity action against Gore in a federal court in Kansas, but did not serve the complaint until after the Kansas two-year statute of limitations had expired. Because the pertinent Kansas statute clearly and expressly states that a civil action is not deemed to have been commenced until service is accomplished under Kansas law, the action would have been barred if filed in a Kansas state court. Federal Civil Procedure Rule 3, however, provides: "A civil action is commenced by filing a complaint." Under this approach, the action would have been commenced in time. Which approach is the proper one?
- A(A) Federal law should be followed because the action is pending in federal court and the Federal Rules of Cviil Procedure adopted in conformity with the Rules Enabling Act (2072) govern the proceeding.
- B(B) Kansas law must be applied under the Rules of Decision Act and the Constitution because the Kansas approach is outcome determinative.
- C(C) Kansas law must be applied because no countervailing federal policies outweigh the Erie policy of avoiding different outcomes in state and federal courts.
- D(D) (B) and (C) are correct.
19Bruno invites Jack over to Bruno’s house to watch the Green Bay Packers play against the Chicago Bears one fine Sunday. Bruno is a citizen and domiciliary of Wisconsin, and is thus a Packers fan. Jack is a citizen and domiciliary of Cook County, Illinois (who is in Wisconsin on business), and is thus a Bears fan. This kind of get-together is a bit of a tradition between Jack and Bruno whenever one visits the other’s state of domicile. During halftime, Jack goes upstairs to use the bathroom. As Jack is returning, he trips and falls down the staircase due to a latent defect in the workmanship of the staircase, about which Bruno neither knew nor had reason to know before this incident. Jack suffers serious injuries because of the fall. Jack is contemplating suing Bruno for his injuries. You are an attorney, and Jack has retained you to represent him. You are contemplating the question of which court is the best court in which to file the complaint. Jack and Bruno are of diverse state citizenship, and the amount in controversy will be well over $75,000, so there would be diversity jurisdiction should you decide to sue in federal court. As an attorney with years of experience in this kind of tort litigation, you know that the case will very likely turn on the issue of whether Jack was a “licensee” or an “invitee.” If Jack was a “licensee,” then he is not likely to recover, because Bruno’s only duty (as a homeowner) to a licensee would have been to warn the licensee about (or render safe) dangerous conditions in the premises about which Bruno knew or had reason to know--clearly not the case here, according to the facts. However, if Jack was an “invitee,” then Bruno had a duty to inspect the premises proactively in order to discover and eliminate dangerous conditions. Thus, if Jack was an invitee, then he stands a chance at recovering something.This is a pure “common law” issue, as there is no controlling state statute or custom, and no controlling federal statutory or constitutional law. Assume that the Supreme Court has not yet rendered the Erie decision, so the pre-Erie regime is still in place. You have decided that the lawsuit will be brought within the state of Wisconsin. The Wisconsin state courts have their own body of “common law” concerning this issue, as do the federal courts. The two respective bodies of common law do not agree on the issue. A Wisconsin state court is certain to find that Jack was a “licensee” under these facts, because Wisconsin common law clearly commands such a result. On the other hand, a federal court might realistically find that Jack was an “invitee.” Bearing in mind your fiduciary duties to your client, Jack, in which court will you file your complaint?
- A(A) Wisconsin State Court
- B(B) Wisconsin Federal Court
- C(C) Illinois State Court
- D(D) Illinois Federal Court
- E(E) The Court of Federal Claims
20Jill has worked for Bruno for several years as Bruno’s secretary. Recently, Bruno was divorced from his former wife, Esmeralda. Ever since the divorce, Bruno has been behaving quite inappropriately towards Jill--smacking her bum in full view of her co-workers, oogling her, making sexually suggestive comments, etc. Jill finally gets fed up one day and consults an attorney about filing a sexual harassment suit. Jill’s attorney files suit against Bruno in the United States District Court for the Eastern District of New York. Jill asserts 2 basic claims; (1) Sexual harassment under federal employment discrimination law; (2) workplace discrimination under New York’s parallel state statutes. Both claims arise out of exactly the same facts. The federal and state statutory schemes are functionally similar, but there some subtle yet sometimes-important differences between the two. As the case progresses, Jill’s federal claims are dismissed on a procedural technicality, leaving only her claims under New York law. Whether or not Jill is ultimately entitled to recover against Bruno, under the New York statute, turns on whether or not Bruno is a “manager” as defined under New York workplace discrimination law. The Court of Appeals of New York (New York’s highest court) has not ruled definitively on whether an employer similarly-situated to Bruno meets the definition of a “manager”. Lower courts in New York have ruled on the issue, but those cases are badly divided. Some lean very favorably to Jill, and others would doom her case if the federal judge were to decide to follow them. Bruno moves to dismiss the case.
Is there some basis for the federal judge to dismiss this case?- A(A) Yes, because the federal court lacks subject matter jurisdiction over Jill's state law claims.
- B(B) No, because the federal court has subject-matter jurisdiction over Jill's state-law claims.
- C(C) Yes, because these circumstances give the court discretionary power to abstain from hearing the case any further, even assuming there is a valid supplemental or other legitimate basis for federal jurisdiction over the claims.
- D(D) No, because the federal court has supplemental jurisdiction over Jill's state law claims.
- E(E) No, because the requirements of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) have not been met here.
21Jessica (a citizen of Maine) sues Bruno (a citizen of Arizona) in federal court for $76,000 arising out of an alleged breach of a contract between Jessica and Bruno. That amount was claimed in good faith, and it is not clear to a legal certainty that Jessica cannot recover more than that amount. The contract required Bruno to do some landscaping work for Jessica. Shortly after the initial contract between Jessica and Bruno was executed, Bruno contracted with Boris (a citizen of Maine) to do some portion of the work for Jessica. It was Boris’ mistake that actually precipitated the lawsuit. The agreement between Bruno and Boris requires Boris to indemnify (i.e., compensate) Bruno for any damages that Bruno might have to pay Jessica as a result of Boris’ mistakes in carrying out the work. However, Jessica did not name Boris as a defendant in her initial complaint; she only sued Bruno. Thus, pursuant to Federal Rule of Civil Procedure 14, Bruno files a third-party complaint “impleading” Boris as a “third-party-defendant” in the lawsuit, since Bruno is saying that, if Bruno is liable to Jessica, then Boris is liable to Bruno to the same extent. Both claims in the case must be decided solely by reference to state law; no federal legal issues are implicated in the case.
Does the federal court have supplemental jurisdiction over Bruno’s claim against Boris for indemnification?- A(A) No, because Boris' presence in the case destroys complete diversity.
- B(B) No, because the facts do not indicate how much Bruno is suing Boris for.
- C(C) Yes, because Bruno's claim against Boris shares a "common nucleus of operative fact" with Jessica's claim against Bruno.
- D(D) Yes, because the parties were diverse when Jessica filed her initial complaint against Bruno.
- E(E) Yes, because indemnification is a federal question.
22Woolf, who resides in the Northern District of Texas wants to sue Austen, who resides in the Western District of Louisiana for negligence resulting in an automobile accident. The accident occurred in Oklahoma. Where would venue be proper?
- A(A) Northern District Texas
- B(B) Western District Louisiana
- C(C) Eastern District Oklahoma
- D(D) Western District Louisiana or Eastern District Oklahoma.
23Woolf (N.D. Tex.) wants to sue Austen (W.D. La) and Bronte (E.D. La.) for violating her federal civil rights in an incident that took place in Oklahoma (E.D. Okla) Where would venue be proper?
- A(A) W.D. La., E.D. La., or M.D., La.
- B(B) E.D. Okla.
- C(C) W.D. La., E.D. La., M.D. La., or E.D. Okla.
- D(D) W.D. La., E.D. La., or E.D., Okla
24Woolf (N.D. Tex.) wants to sue Austen (W.D. La.) and Bronte (E.D. La.) for theft of trade secrets. The alleged theft arose out of a series of events: (1) Austen approached Woolf in New York City (S.D.N.Y.) while Woolf was there to see a Broadway play and got access to the secret; and (2) Bronte wrongfully used the secret in her business in Hartford (D. Conn.) Aside from Louisiana, where would venue be proper?
- A(A) D. Conn.
- B(B) S.D.N.Y.
- C(C) N.D. Tex.
- D(D) D. Conn. or S.D.N.Y
25A woman brought suit in State A federal district court against the company she worked for, claiming that it had failed to promote her on account of her gender, in violation of a federal employment-discrimination statute. The woman is a citizen of State A; the company is a corporation incorporated in State B, with its headquarters in State C and with most of its employees working at the office in State A where the woman works. The relief sought by the suit consisted solely of $46,000 in back pay. Two months after the company timely filed its answer, and while discovery was still pending, the company made a motion to dismiss the suit for lack of subject-matter jurisdiction. Will the federal court grant the motion?
- A(A). Yes, because the company is a citizen of several states, one of which is the same as the woman's state of citizenship.
- B(B) Yes, because although there is diversity of citizenship, the amount in controversy requirement is not met.
- C(C) No, because the woman's claim arises under federal law.
- D(D) No, because the company waived its objection by failing to assert it either in its answer or in a motion made before it served its answer.
Información
- Descripción
- Test sobre Civil Procedure Multiple Choice, creado por Rocky Slaughter el 08/05/2018.
- Autor
- Rocky Slaughter
- Idioma
- English
- Visitas
- 75
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