Civil Procedure Review Questions

Directed Verdict/JNOV Motions
1. Hagrid brings an action against Potter for infringement of a copyright Hagrid holds on a
book about breeding dragons. The case is tried to a jury. Potter moves for a directed
verdict at the close of Hagrid’s evidence. The judge denies the motion. Potter renews the
motion after presenting his own evidence. The motion is denied again. The jury is
instructed, deliberates, and returns a verdict for Hagrid. May Potter move for a JNOV?

2. Assume, as in example 1, Potter moves for a directed verdict at the close of Hagrid’s
evidence but does not renew his motion after presenting his own evidence. The jury is
instructed, deliberates, and returns a verdict for Hagrid. May Potter move for a JNOV?

3. Hagrid sues Potter, alleging that Potter’s negligence caused Hagrid personal injuries.
Potter denied the allegations in his complaint and raised the affirmative defense of
contributory negligence. Assume that in this jurisdiction contributory negligence must be
proved by the defendant and is a complete bar to any recovery by the plaintiff.

a. At the trial of Hagrid v. Potter

1. Hagrid has the burden of production and the burden of persuasion on all
elements of his cause of action.

2. Hagrid has the burden of production initially, but it shifts to Potter after
Hagrid puts on legally sufficient evidence of each element of his claim. The
burden of persuasion remains on Hagrid.

3. Hagrid has the burdens of production and persuasion initially, but both shift to
Potter after Hagrid puts on his case in chief.

4. Because he has raised the affirmative defense of contributory negligence,
Potter has the burdens of production and persuasion throughout the case to
show that Hagrid was negligent and he was not.

b. At the trial of Hagrid v. Potter

1. Hagrid’s failure to prove the elements of his claim by a preponderance of the
evidence could result in the judge entering a directed verdict for Potter before
the case goes to jury.

2. Hagrid’s failure to produce evidence on which a reasonable jury could find for
Hagrid could result in the judge entering a directed verdict for Potter before
the case goes to the jury.

3. Hagrid’s right to a jury trial under the 7th Amendment means that his case
must be permitted to go to the jury even if he fails to meet his burden of

In support of her motion she attaches an affidavit in which she asserts that she did not run the red light and hit Goldberg. At a trial of Hagrid v. 4. 1) Fentiman moves for summary judgment. In support of her motion she attaches an affidavit in which she asserts that she did not run the red light and hit Goldberg. and hit Goldberg. Fentiman. c. In support of her motion she cites a deposition of Goldberg in which Goldberg admits that he is not sure who ran the red light. Professor Goldberg brings an action in federal court against Fentiman. alleging that Fentiman negligently ran a red light. Potter would have the burden of production and the burden of persuasion on the elements of his affirmative defense. Potter would have the burden of persuasion and the burden of production on at least one element of his affirmative defense. 2. Summary Judgment Problems Professor Goldberg is leaving the law school and making a left onto North Broadway in White Plains. Professor Fentiman is entering the law school from North Broadway and hits Professor Goldberg’s car. resulting in damages to Professor Goldberg. Assume that subject matter jurisdiction is proper. Potter would have the burden of production but not the burden of persuasion on all elements of his affirmative defense. The attorney for Goldberg opposes the motion by filing an affidavit in which Goldberg swears that Fentiman ran the red light. The attorney for Goldberg opposes the motion by filing an affidavit from John Witness who swears that he saw Fentiman run the red light on the date and time in question. Potter would have the burden of persuasion but not the burden of production on all elements of his affirmative defense. Each hypo involves the case of Goldberg v. 4. it is irrelevant what evidence Potter might have. Potter 1. If Hagrid produces evidence in his case in chief demonstrating that no reasonable jury could fail to find for Hagrid. and hit him. Should the motion be granted? 2) Fentiman moves for summary judgment. 3. the judge could grant a directed verdict for Hagrid before the case goes to the jury. Should the motion be granted? 3) Fentiman moves for summary judgment. Should the motion be granted? . production. Goldberg opposes the motion by asserting that the complaint signed by his attorney states that Fentiman hit Goldberg.

sue Donald for his injuries. with all of the parties blaming the others for the collapse of the deal. however. claiming that Peter dashed out from between parked cars and caused the accident. still preoccupied over what he saw as the lack of vision of his business partners. The suit is filed in federal court based on diversity jurisdiction. and Mark met to try to finalize the formation of a joint venture to obtain a Mini Cooper dealership for New Britain. Unfortunately. Peter does. Assume that Donald filed a counterclaim against Peter for negligence. (Peter is from Connecticut. but the result was a serious accident in the parking lot in which Peter. Connecticut. and Mark is from Maine). 1. Because of a longstanding business relationship. alleging that Mark drove negligently and requesting contribution and indemnity. Can Mark bring a claim against Peter for breach of contract? 5. Assume that Donald used Rule 14 to bring Mark into the lawsuit. I am entitled to summary judgment unless Goldberg can demonstrate that there is a genuine issue of material fact. Peter followed several minutes later. Donald wants to bring Mark into this lawsuit. Donald and Mark stormed out immediately. The attorney for Fentiman opposes the motion by filing an affidavit in which Fentiman denies running the red light and hitting Goldberg on the time and date in question.” Should the motion be granted on this basis? JOINDER PROBLEMS Peter. Donald and Mark escaped without physical injury. the meeting went from bad to worse. causing the accident. Donald decided to use Rule 14 to bring Mark into the lawsuit. Should the motion be granted? 5) Fentiman moves for summary judgment and in support of her motion says.4) Goldberg moves for partial summary judgment. Mark in turn has filed a claim against Peter for negligence. claiming that Donald was driving negligently. Peter was seriously injured. heading for their cars while still fuming about the meeting. Peter does not want to sue Donald for breach of contract. Can he add a claim for breach of contract? 4. Donald from Delaware. What procedural vehicles could he use? 2. and Donald does not want to sue Peter for breach of contract. but both suffered significant damage to their cars. Can he use that counterclaim to bring a breach of contract claim against Mark? . No one is quite sure what happened next. Can Donald also add a claim against Mark for negligence to seek damages for the damage to Donald’s car? 3. was caught between Mark and Donald’s cars as they collided. while walking to his car. In support of his motion he attaches an affidavit in which he asserts that Fentiman ran the red light on the date and time in question. “Since I do not have the burden of proof. Assume that Donald used Rule 14 to bring Mark into the lawsuit. and hit him. Donald.

Concerned about quality child care. alleging that caring for her injured infant has caused her great distress. On the way home they were involved in a serious traffic accident. About a month later. A number of issues have arisen during discovery. and so Larry has retired from practice and takes care of Tim full time. After she became a partner at her law firm. The Taylors fired Shelley. so the parties will use formal discovery from the beginning. a twenty-two year old British citizen. a respected national agency that trains and recruits child care providers from throughout the United States and the world. Tim. do light housework and cooking. Shelley had succumbed to homesickness for the local pub and had three beers before getting Tim. Lila Taylor is seeking damages for mental anguish. and both reduced their billable hours in order to spend more time with him. Nanny Nation has sent the Taylors a Request for Production of Documents seeking the therapist’s records. (All other claims have been abandoned or resolved by the parties and eliminated from the lawsuit. Lila had a baby son. and the only claims are for negligence and fraud. Right now. It therefore has requested production of “any and all documents evidencing the past and potential income from and expenses of Larry Taylor’s law practice” from the time he began practicing through the present. Through Nanny Nation. watching Tim suffer from his injuries. Second. Such damages are theoretically recoverable under applicable tort law. Lila saw a therapist and was treated briefly for depression. They sue Nanny Nation for damages. but Tim received significant head and neck injuries (despite the fact that he was firmly and correctly placed in his car seat). Nanny Nation has learned that while she was in law school. Taylor v. They think that his practice in Pace was speculative from the beginning and already doomed to failure before Tim’s injury. They have suffered from mental anguish. After graduation. and she returned home to England. although the doctors continue to watch for signs of permanent brain damage. Nanny Nation is now entering the discovery phase. First. the Taylors and Nanny Nation are the only parties to the suit. The Eastern District of Pace has opted out of the automatic disclosure rules. Shelley suffered only superficial injuries. Shelley picked up Tim from Gymboree and was driving him home. This would include both law firm financial statements . they both began practice in the fictional state of Pace. Both parents were thrilled with the child. and the case ends up in federal court (in the Eastern District of Pace) on diversity grounds. providing those nannies to families all over the United States.) The Taylors claim various categories of damages for both parents and for Tim. and care for Tim while they were at work. to live in their home. the Taylors hired Shelley Jelinsky. The Taylors have paid substantial medical bills for his treatment. tragedy struck. Nanny Nation is skeptical of Larry Taylor’s lost income claim. Tim has recovered from most of his injuries. the Taylors contacted Nanny Nation. Unfortunately. and have lost income while tending to his psychological and medical needs.Practice Exam Question 3 a) Larry and Lila Taylor are lawyers. They no longer feel comfortable leaving Tim with anyone other than a family member.

stating that he had investigated Shelley’s background by checking for a criminal record (finding none) and by talking to Amanda. She’s particularly insistent that you address the following issues: 1) whether Lila Taylor can avoid the disclosure of her therapist’s records. Training Manager. It argues that the Taylors will be unable to prove two required elements of its case: 1) that Nanny Nation knew or should have known that Shelley had a drinking problem. and the company’s strategy for defending lawsuits against it. if any. Second. Ten copies of the manual have been made. All are marked “CONFIDENTIAL . Shelley’s best friend from school. and Nanny Nation has objected to its production. Question Two Taylor v. Nanny Nation has just filed a motion for summary judgment. and about damage to its business reputation. she did not have a drinking problem. Nanny Nation supports its motion with three affidavits. She’s asked you to explain both the arguments in favor of the Taylor family’s positions and the weaknesses of those arguments. Human Resources Director. and 3) whether the Taylors should file a motion to compel production of Nanny Nation’s claims manual.KEEP IN A LOCKED DRAWER” on the cover. and 2) that Shelley’s intoxication was the cause of the crash that injured Tim Taylor. it includes the affidavit of Ronald Reed. Nanny Nation has been pending for six months.and individual client files and billing records. about possible harm to its clients’ children. Nanny Nation was aware of the potential problems that could arise if it chose its nannies poorly. Therefore. Nanny Nation’s executive director Mary Poppins instructed Tully Alford. and the company’s five telephone operators. You are an associate at the law firm representing the Taylors. about a year before the Taylors first contacted them. and the partner you work for wants a memo. The claims manual discusses the applicable law. They were distributed to the President. he is likely to be required to produce. Marketing Manager. 2) how much of Larry Taylor’s law firm financial information. the proper procedure for talking to clients with complaints. Ronald’s affidavit further states that . The Taylors have requested production of the manual. Nanny Placement Director. First. an employee of Nanny Nation. the company’s general counsel. whom Shelley had listed as a reference. the proper response to discovery requests. A third discovery dispute surrounds the Nanny Nation Claims Manual. stating that although Shelley liked to go to the pub as much as any English teenager. it attaches the affidavit of Amanda Buckham. It was concerned about its potential liability. to draft a manual regarding claims procedure and he did so.

where the nursing home in which Pam resides is located. and there is no police report). and what else. of which Amanda Buckman’s is one. stating his credentials and opining that the accident that injured Tim Taylor would have happened even if Shelley had not been intoxicated. The deposition. The transcript of Vincent’s deposition indicates that he based his opinion solely on Shelley’s version of the circumstances surrounding the accident. if anything. produced by Nanny Nation during discovery. but that she would have shared the same information with them had they called. what the response should contain. She also wants you to predict how the judge will ultimately rule on the motion. she is domiciled in New Jersey. Under the law of New York. You have called Becky on the phone. Your partner has been very impressed by your work on the Taylor case. It lists three names. should be done. Jurisdiction was properly based on diversity of citizenship because even though Pam resides in New York. Vida has an engineering degree and has been certified as an expert in accident reconstruction by the NSRE (National Society of Reconstruction Experts). Becky thinks that the other person got married and moved to somewhere in Australia. Third. Advise her what the Taylors should do in response to the motion for summary judgment.nothing he found led him to believe that Shelley had a drinking problem. One of the other names (not checked) is Becky Martin. Please write a memo to the partner. in the United States District Court in the Eastern District of New York. and so she has asked you to look at the summary judgment motion and accompanying papers. a patient injured in a nursing home fire. This is an undated memo to the file. She wants to know if a response is necessary. She told you that Shelley was a wild teenager who got drunk at least weekly. listing possible references for Shelley Jelinsky. In making your recommendation. Plaintiff alleged in her complaint that . You have not managed to locate the other person listed in the memo. She further told you that no one from Nanny Nation ever called her. SUMMARY JUDGMENT REVIEW QUESTION 1) Pam. Home. The phone call. Nanny Nation relies on the affidavit of Vincent Vida.000 against the Home’s operators. accident reconstruction expert. brought a suit for $77. the failure of a nursing home to install smoke detectors in each patient’s room is considered to be negligence per se. Since Becky lives in a small English village you have not yet been able to take her deposition or get her to sign an affidavit. nor did he inspect the vehicles involved in the crash before they were repaired. Include any questions you need answered about discovery in the case to date. but she would be willing to cooperate with you given more time. He has not interviewed the other driver. although she was becoming more mature with age. He was not able to inspect the crash scene (he was hired long after it was gone. There is a check by Amanda’s name and by one other. assume that you have access to the following material: The memo. It is Vida’s opinion that the driver of the other vehicle changed lanes so unexpectedly that Shelley could not have avoided a collision even if she had been perfectly sober. Inc.

” The Court denied the motion. attaching her own sworn affidavit stating that no smoke detector had been installed in her room. Wilma opposed Fred’s second motion on the grounds that he waived his venue defense. Fred filed a motion under 12(b)(3) to dismiss for improper venue. what that rules says. Wilma . The Defendant’s attorney responded with a memorandum asserting. Answer each question thoroughly in the space provided. Was the district court correct in its ruling? Discuss. “My client stands by its Answer in this case. Fred filed an answer on Day 10 in which. QUESTIONS ON PLEADINGS Assume that all of these questions take place in federal court and that the federal rules of civil procedure apply. improper venue. How should the court rule on Fred’s second motion? 2. 1. Fred served and filed an answer that denied all the material allegations of Wilma’s complaint and raised the defenses of lack of subject matter jurisdiction and contributory negligence. prior to his answer. lack of jurisdiction over the subject matter. On Day 4. Wilma opposed Fred’s second motion on the grounds that he waived his defense of lack of subject matter jurisdiction. when Fred attempted to amend his answer to include the defense of improper venue. Make sure that you give the answer. Wilma filed a complaint against Fred and process was served on Day 1. The following day. and expiration of the statute of limitations. Pam moved for summary judgment as to liability. prior to his answer. Wilma filed a complaint against Fred and process was served on Day 1. How should the court rule? 4. Fred filed a motion under 12(b)(1) to dismiss for lack of jurisdiction over the subject matter. and how the rule applies to the facts set out in the question. How should the court rule on Fred’s second motion? 3. denying all the allegations in the complaint. Fred filed a motion under Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction. Neither the parties nor the court took any further action until Day 25. arguing that Fred has waived all of these defenses. the specific rule that applies. failure to state a claim upon which relief may be granted. Wilma filed a complaint against Fred and process was served on Day 1. he raised the defenses of lack of jurisdiction over the person. Wilma filed a complaint against Fred and process was served on Day 1. Fred filed a motion under rule 12(b)(2) to dismiss for lack of jurisdiction over the person. On Day 4. in addition to responding to allegations in Wilma’s complaint. The next day. You may look at your rule book while answering the questions.Defendant failed to install a smoke detector in her room. Wilma moves to strike. On Day 10. Defendant answered.

moved to strike. damaging falsehood about the plaintiff to a third person is liable for defamation or slander. Subject matter jurisdiction and personal jurisdiction were proper. but brought an action against Seler for reformation of the contract to correct an alleged error in the contract price. This is an action for slander. Practice Exam Question 1 Seler and Byer signed a written contract by which Seler agreed to sell Whiteacre to Byer. 3. defendant falsely stated “Peter [referring to the plaintiff] is a heavy user of crack cocaine. Please analyze whether this complaint satisfies the federal rules. Remember that although a complaint may be minimally acceptable under the Federal Rules. and that the $85. suspended from college.000. The contract provided that the purchase price of Whiteacre was $85. [Jurisdictional allegation] 2. a person who communicates a disparaging.” Defendant knew that this statement was false at the time that he made it. the jurisdictional requirement. Byer answered the counterclaim and moved to strike the demand for jury trial. 1997. New York. and has suffered great mental anguish. How should the court rule? 5. Under the applicable state law. If it is not fully satisfactory.000. in Old Plains. Byer did not send Seler any money. has been unable to obtain any employment. Byer alleged that the agreed price was $37. state the appraised . As a result. Do not discuss any of these parts when you are assessing the complaint. The action was brought in a federal district court. The caption.000 figure in the contract was a typographical error. This is the complaint: 1. The motion was denied.000 purchase price set forth in the contract and demanded a jury trial. plaintiff has been injured in his reputation. he counterclaimed for the $85. In addition. in Room 215 of Old Main on the campus of Space University. please identify its defects. Seler sent Byer a deed conveying good title to Whiteacre. a good complaint is as perfect as possible so that the defendant’s attorney will have no basis for attacking it on pleading grounds. Please review the following complaint and assess whether it is fully satisfactory. all to his damage in the sum of $100. Seler filed an answer asserting that the written contract accurately stated the agreed price. state by whom. arguing that the amendment was improper and that Fred waived the defense of improper venue. If it is fully satisfactory. and the demand for judgment [the wherefore clause] have purposely been omitted.500. please explain why. On May 10. Seler then served Byer with interrogatories demanding responses to the following questions: “(1) Have you had Whiteacre appraised? (2) If so.

Byer testified that the agreed price was $37. Paul was injured and sued Zonco for $150. $42. There was uncontradicted testimony introduced at trial that Smith was employed by Zonco and Paul had suffered a severe. and attach copies of all written reports received from all appraisers.value or values.000. alleging that Zonco and Smith were negligent. while driven by Smith. At trial.200. Practice Exam Question 2 Smith was an employee of Zonco.500 and that the $85. Paul filed the deposition with a motion for summary judgment on the issue of liability. 1) Did the court rule correctly on the motion to strike the demand for a jury trial? Discuss. struck Paul. No other motions were made during or after trial. A truck owned by Zonco. Zonco refused to produce the statement and the court sustained that refusal. denying the negligence of either Zonco or Smith. Byer promptly moved for judgment notwithstanding the verdict (JNOV is now called “judgment as a matter of law”). Paul took the deposition of Smith at which Smith testified under oath that (1) Paul was crossing the intersection in the pedestrian crosswalk with the green light. Byer rested his case. and judgment was entered accordingly. 2) Did the court rule correctly on the objection to the interrogatories? Discuss. Zonco answered. and (2) the truck driven by Smith ran into Paul because the brakes failed. reserving for the jury only the question of damages. and. The motion was denied.000 in federal district court. a corporation which was incorporated and had its principal place of business in State X. at most. Zonco moved for a directed verdict (“judgment as a matter of law”). Paul then served Zonco with a notice to produce a written statement made and signed by a co- worker of Smith who was riding with Smith at the time of the accident. 3) Was the court correct in granting the motion for judgment notwithstanding the verdict? Discuss. The statement had been obtained by an adjuster for Zonco’s insurance carrier. Smith was not made a party defendant. The action was tried before a jury. the court ordered disclosure only of the identity of appraisers and their appraised values. An appraiser testified on behalf of Byer that the value of Whiteacre when the contract was signed was. in the alternative. for a new trial.” Over Byer’s timely objections to the interrogatories.000 figure in the written contract was a typographical error. and further denying that Paul was injured. At the conclusion of the evidence. painful injury as a . Seler testified that the agreed price was $85. The court granted the motion for judgment notwithstanding the verdict.

the court’s rulings on: 1) Paul’s notice to produce. Paul moved for a new trial solely on the issue of damages. The jury returned a verdict in the sum of $85.000. The trial judge ordered that the motion should be granted. and in opposition to. Discuss the arguments which might reasonably have been made to the trial court in support of. This motion was denied.000.000. and that his special damages for medical and hospital bills and loss of earnings were $80. and 4) Paul’s motion for a new trial. unless Zonco consented to an increase in the judgment to $95.consequence of the accident. Zonco moved for a judgment notwithstanding the verdict. . 3) Zonco’s motion for judgment notwithstanding the verdict. 2) Paul’s motion for summary judgment.