INSTRUCTIONS
 

1. Begin each answer on a new page. Clearly indicate the Question and sub-part to which your answer refers.
 

2. Limit each answer to no more that three paragraphs.
 

3. State the Rule or Statute that applies whenever appropriate.
 

4. You may bring the Federal Rules Book into the exam and any hand written materials that you have produced yourself.
 

5. You have three hours to complete the exam.
 
 

FACTS
 

Paul sued Doe in Federal District Court in State x for personal injuries, including a broken leg, allegedly caused by Doe's negligent operation of a motor vehicle. The injuries were sustained on March 1, 1989. Suit was filed January 2, 1990. The statute of limitations for all actions in State X is one year. The Complaint filed by Paul set forth the following:
 

PAUL,
 

Plaintiff, Case: XXX

V. NEGLIGENCE

DOE, PERSONAL INJURY

Defendant,
 

COMPLAINT IN NEGLIGENCE
 

I. This Court has jurisdiction over this case under federal and applicable state law.
 

II. On March 1, 1989, in Big City, in the State of X, an automobile driven by Doe disobeyed a traffic signal at the corner of 5th and Main and negligently injured Paul.
 

WHEREFORE, Plaintiff prays this honorable court for a judgment over $50,000.
 

Signed, THE ATTORNEY
 
 
 
 

QUESTION I..
 

Doe has received a copy of the Complaint and has come to you for consultation on January 21, 1990. Based solely on examining the face of the Complaint:
 

a. Is it possible to tell whether the case is properly in Federal Court? Why or Why not?
 

b. When is Doe's Pre-Answer Motion pleading due? Explain.
 

c. When is Doe's answer due. Explain.
 

d. Is it possible for Paul to add additional claims after January 22 without leave of Court? Explain.
 

e. Which single Pre-Answer Motion is most likely to result in a dismissal? Explain and decide whether the dismissal will be with prejudice?
 

Question II
 

Before you are able to file your first pleading, a properly drafted Complaint stating proper jurisdiction, was filed on January 23, 1990 and properly served on your office the same day.

a. What responsive pleading will you file to the corrected first amended Complaint? Explain.

b. Which party has the burden of pleading that Doe's car had faulty brakes. Why?

c. If the proper party fails to assert a mechanical malfunction in the Complaint, is that issue waived? Explain.

d. How can Doe determine whether Paul's contributory negligence is an affirmative defense or a counter claim? Explain.

e. If contributory negligence is a counter-claim, but Doe calls it, "First Affirmative Defense", what responsive pleading, if any, must Paul file? Explain.
 
 

Question III.
 

Assuming proper pleadings have been filed by both Plaintiff and Defendant, each party began an aggressive discovery process. Over several months, Paul: (1) received medical treatment for injuries in a past accident; (2) consulted with his attorneys; (3) interviewed six tire-track examiners, who all supported Doe; (4) found out that Dr. Green, Paul's physician was an eye-witness to the accident who also supports Doe; (5) received notification that his car was subject to a safety recall due to brake failure.

a. How does each party know what information must be provided first? Explain.

b. Which of the above (1-5) are outside the scope of discovery in this case. Explain.

c. Which witness(es) has (have) to be disclosed by Paul under the expert witness discovery rules? Explain.

d. If Doe seeks a Motion to Compel production of written interviews, conducted by Paul's attorney, (1) with Paul; (2) with the tire examiners, and (3) with Dr. Green, what will be the likely outcome? Explain.

e. Paul wants disclosure of the safety record of his vehicle from the Manufacturer, Inc., which has ignored his letters, what is his recourse? Explain.
 
 

Question IV.
 

On March 2, 1990, Paul moved to amend his Complaint to add Manufacturer as a co-defendant. In a properly framed Complaint, Paul asserted that the accident was due to manufacturing and design flaws in his own vehicle, in addition to the negligence of Doe. Manufacturer denied all allegations in Paul's Complaint.
 

Shortly thereafter, Doe filed a Motion for Summary Judgment based on the written statement of Dr. Green. Paul filed a Motion for Summary Judgment against Manufacturer based upon an earlier case in which Manufacturer lost a product liability claim for the same style of brakes that were on Paul's vehicle.

a. Will Paul be allowed to amend his Complaint on March 2 to add Manufacturer over Manufacturer's Statute of Limitations Defense? Explain.

b. Paul opposed Doe's Motion for Summary Judgment by filing a detailed affidavit in which he describes a set of events completely different from Dr. Green. Will Doe prevail? Explain.

c. Will Paul prevail by asserting that res judicata prevents Manufacturer from relitigating liability for the brakes? Explain.

d. Paul was not a party to the previous litigation, can he prevail by asserting collateral estoppel to prevent Manufacturer from relitigating liability for the product? Explain.

e. If both Motions for Summary Judgment are granted, which parties, if any, may appeal. Explain.
 

Question V.
 

Assume that both Motions are denied. On the eve of trial, Paul comes upon a "smoking gun" memo and moves to amend his Complaint to add allegations that Manufacturer intentionally manufactured dangerous vehicles and that Manufacturer also guilty engaged in predatory trade practices in violation of the Sherman Anti-Trust Act. Further Paul files a Motion for a Preliminary Injunction requiring that Manufacturer be required to recall all vehicles at a cost of $1,000. The trial judge denied the Motion to amend the Complaint and the Motion for a Preliminary Injunction. Manufacturer filed a Motion to Dismiss the AntiTrust claim citing a previous regulatory decision in which the Manufacturer prevailed in an Anti-Trust claim brought by the Securities and Exchange Commission.

a. May Paul appeal the ruling of the trial court? Explain.

b. If Paul may appeal any portion of the trial court ruling, what standard of review will the Court of Appeals apply? Explain.

c. Is the trial court likely to grant Manufacturer's Motion to Dismiss the Anti-Trust claim? Explain.
 

d. If the Anti-Trust claim is dismissed and the Court of Appeals require the trial judge to grant the injunction, would Paul still have a right to a jury trial? Explain.

e. If the jury were to render a verdict with special interrogatories against Paul with respect to Manufacturer, how would that effect the Preliminary Injunction? Explain.
 

Question VI.
 

During the course of the trial, Paul introduced favorable testimony from a tire examiner who admitted being paid a large sum for testifying for Paul. Paul also introduced evidence that the President of Manufacturer was secretly recorded and admitted intentionally building cheap, flawed, dangerous products. His Motion to Amend his Complaint was denied again.
 

Doe introduced Dr. Green's testimony on the negligence claim and the testimony of a nun, who was an internationally respected tire mark examiner. All of the jurors were drawn from a county in which Manufacturer was the major employer and tax payer. Each juror examined their vehicles, after learning of the admissions of Manufacturer's President. The jury rendered a general verdict in favor of Paul with respect to Doe and a verdict in favor of Manufacturer. Paul filed a Motion for a New Trial with respect to Manufacturer, the trial court denied the Motion on July 1, 1990.

a. When must Paul file his Notice of Appeal? Explain.

b. May the trial court properly grant Doe's Motion for a Judgment Notwithstanding the Verdict? Explain.

c. Are the jury composition and independent jury investigation issues sufficient to reverse the trial court's ruling on the Motion for a New Trial? Explain.

d. What remedy is available to Paul if Doe's Motion for a Directed Verdict is denied, but overturned on appeal? Explain.

e. Should the Court of Appeals uphold the denial of Paul's Motion to add the second claim against Manufacturer? Explain.
 
 

Question I. A
 

It is not possible to tell whether the case is properly in federal court. The case must either involve a federal question, or diversity jurisdiction and damages over $50,000. The case does not involve a federal question as negligence is a state tort action. It does pay for damages over $50,000, but it does not address diversity as required by 28 U.S.C. 1332 and Rule 8(a).
 

Question I. B
 

According to Rule 12, Doe must file a pre-answer motion within 20 days of being served with the complaint. If Doe was served on January 2, 1990, the motion would have to be filed on January 22, 1990 (ignoring holidays).
 

Question I. C
 

An answer is also due within 20 days per Rule 12. If service of process is waived, it must be filed within 60 days. The same is true for pre-answer motions. If Doe first files a pre-answer motion and it is denied, Doe will have 10 days to file an answer.
 

Question I. D
 

Doe can add additional claims without leave of court for 20 days after filing an answer on January 22. This is true because Paul is not required to plead in response to the answer (assuming there is no counter-claim). Or Doe can agree to amend the complaint with Paul's stipulation at any time. Rule 15(c) governs amendments.
 

Question I. E
 

Under Rule 12, these pre-answer motions may be brought: (1) failure to state a claim for which relief may be granted, (2) lack of subject matter jurisdiction, (3) improper venue, (4) lack of personal jurisdiction, (5) insufficiency of process, (6) insufficiency of service of process, (7) failure to join a party.
 

This complaint pleads specific facts relating to the legal theory of negligence. It would be necessary to look at the substantive law of the jurisdiction to find out if the complaint includes all the elements of a negligence claim, but the complaint looks adequate. As it gives Doe enough information to frame a responsive pleading, it is sufficient. The case is unlikely to be dismissed for failure to state a claim upon which relief may be granted.
 

The complaint does not adequately address the issue of subject matter jurisdiction, one of the pleading requirements under Rule 8. See question A above. A 12(b)(1) motion would probably be sustained. The other bases for dismissal under Rule 12 are not addressed in the fact situation. The dismissal could be with prejudice but it would likely be without. Unless the complaint's defects are particularly egregious, the court usually grants leave to amend.
 

Question II. A
 

Paul can amend freely before a responsive pleading is filed (Rule 15). Doe must respond within the time remaining for a response to the first complaint or 10 days, which is longer (Rule 15). As Doe is late in responding and has no time left, he would probably get 10 days to respond. Since

the strongest basis for a pre-answer motion has been eliminated (see I.E.), Doe would probably file an answer under Rule 8.
 

Question II. B
 

Since faulty brakes would probably be a defense to the negligence action under Rule 8(c), Doe

would have to plead this. The but-dens of pleading, production, and persuasion are allocated by state law, but generally the person with the information has the burden to plead it.
 

Question II. C
 

The complaint can probably be amended under Rule 15. It can be amended without leave of court or Stipulation before a response is filed or 20 days after the answer is filed. It can be amended with stipulation of the other party at any time The court can grant leave to amend if justice requires, and leave is freely given. In deciding whether to allow amendment, the court looks at the good or bad faith of the party seeking amendment and prejudice to the other party (Beeck). Generally, the closer the case gets to the trial, the court is less likely to allow amendment as the opposing party becomes unable to respond effectively to the amendment.
 

If amendment was not allowed, that issue would be waived. The party seeking amendment would not be allowed to raise the issue at trial (Layman.)
 

Question II. D
 

Paul needs to look to the substantive law of the jurisdiction to decide whether contributory negligence is a defense or a counter-claim. This law will set out the elements of a cause of action along with any defenses or counter-claims.
 

Question II. E
 

There's a problem here. The court must decide whether to follow the labeling of the answer or enforce its understanding of applicable law. Paul is required to plead in response to a counterclaim but not to an affirmative defense (Rule 7). If Paul doesn't respond, the allegations in the counter-claim will be deemed admitted. Since Paul doesn't know what the court will decide, Paul should respond as though it were labeled a counter-claim.
 

Question III. A
 

Within 10 days of the discovery meeting, each party must provide to the other: (1) names and address of people likely to have information relevant to facts pleaded with particularity, (2) documents relevant to facts pleaded with particularity, (3) insurance information, (4) damage computations and their basis. As discovery progresses, these disclosures must be updated. Parties must also disclose 30 days before trial names and addresses of witnesses as well as documents to be used at trial. Expert witnesses must be disclosed 90 days before trial (Rule 26). Otherwise parties must respond to discovery methods within certain time limits (Rules 30, 33, 34).
 

Question III. B
 

(1) Medical treatment for injuries in a past accident is not relevant as required in Rule 26: it does not bear on the legal issues at hand.
 

(2) Consultation with an attorney is protected by attorney-client privilege. Rule 26 excludes privileged information.

(3) The tire-track examiners would be experts consulted in anticipation of trial. Since these examiners won't be witnesses (as they support Doe), their information is only discoverable on a showing of exceptional circumstances (Rule 26). As Doe can hire his own tire examiners, it's doubtful that he can show exceptional circumstances (Chiquita Banana).
 

(4) Dr. Green, as an eye-witness, is discoverable. In fact, he's a required disclosure under Rule 26 as a person likely to have information relating to facts pleaded. If Paul also consulted Dr. Green as an expert after the accident and is not calling him as a witness, that consultation would be protected and require a showing of exception circumstances (see above).
 

(5) This is relevant to the pleaded facts. It is either admissible or likely to lead to admissible evidence (Rule 26).
 

Question III. C
 

Paul does not have to disclose the tire-track examiners except on a showing of exceptional Circumstances (see (b)(3)). Dr. Green is an occurrence witness who would be subject to disclosure 30 days before trial and to discovery (Rule 26). This discovery may be limited, however. Dr. Green's previous treatment of Paul would not be relevant, and consultations after tile accident would be protected as he would be a non-testifying expert.
 

Question III. D
 

Doe would probably fail to obtain any of these interviews. They would necessarily include the impression of Paul's counsel which are absolutely protected under work product doctrine (Rule 26). The tire examiners are additionally protected as non-testifying experts (see above). Doe could discover Dr. Green (for instance, depose him) but not obtain Paul's attorney's personal interview. Doe would not have an opportunity to show substantial need or inability to obtain the equivalent without undue hardship because, unlike other documents prepared in anticipation of trial, documents including the mental impression of counsel are absolutely protected (26(b)(3), Hickman v. Taylor). Besides being denied the motion, Doe may have to pay Paul's fees in defending it for being substantially unjustified (Rule 26).
 

Question III. E
 

Paul can subpoena Manufacturer, Inc., for the records (Rule 45). If they don't comply, they can be held in contempt of court without Paul obtaining an order.
 

Question IV. A
 

Amendments relate back under Rule 15(c) if they arose out of the same transaction or occurrence. Since Paul's claim relates to the car accident, it appears to meet this requirement. However, in order to add a new party, that party must receive notice (so that they know or should have known that the complaint should have named them as a party). Though Paul wrote the manufacturer re: defects, he never sent them a copy of the complaint giving them effective notice.
 

Question IV.B
 

If Paul shows in his affidavit that there is a genuine issue of material fact, the motion should be denied under Rule 56. The Celotex standard requires that Paul do more than point to the pleadings but affirmatively show that a dispute exists. Dan appears to do this.
 

Question IV. C
 

Paul will not prevail. Res judicata only applies if the parties are the same. Paul was not involved in the previous litigation and was not in privity, as no interest of his was represented.
 

Question IV. D
 

Paul may be able to assert collateral estoppel. Collateral estoppel applies if the issue was litigated and determined by a trial judgment and the issue was essential to the judgment. The issue appears to be the same. Product liability related to manufacturing and design flaws. This issue was litigated and determined and it would have been essential to the judgment on a product liability claim. Though the offensive use of issue preclusion is permissible, it requires a high standard to be met (Parklane). If the Manufacturer did not have a full and fair opportunity to litigate or there is any other kind of unfairness, issue preclusion won't apply. Significant factors include a large difference in the amount of money involved and new procedural opportunities in the second case. Also, if the manufacturer has won other cases on this issue, Paul would probably not prevail on these inconsistent judgments (Century Home). The odds are against Paul in this motion.
 

Question IV. E
 

The Manufacturer would not be able to appeal, but Doe would. If the Manufacturer loses at the summary judgment stage, Paul still must prove damages, then the Manufacturer can appeal that judgment. If Doe wins, Paul cannot continue to litigate his case. Since the denial of Doe's motion is a final judgment, it isn't appealable.
 

Question V. A
 

Paul may not appeal the denial of leave to amend. This is not a final judgment. Paul may appeal the denial of the preliminary injunction. 28 USC § 1292 provides for the immediate appeal of orders regarding injunctions.
 

Question V. B
 

The court of appeals will apply a clearly erroneous standard to the appeal of the injunction. As an injunction is an equitable issue, the trial court decides it without a jury. Mixed questions of law and fact subject to the clearly erroneous standard (Rule 52). The district court judge would have to determine the facts and the applicable law in addressing this issue.
 

Question V. C
 

This is unlikely. Collateral estoppel require that the same issue be litigated and determined resulting in a final judgment and the issue be essential tothe judgment. Procedure helps to determine what an issue is. As the previous decision was regulatory, the procedure was different. It isn't really the same issue. The Manufacturer would probably not be able to use collateral estoppel defensively in this situation.
 

Question V. D
 

Paul would still have a right to a jury trial Paul would still be claiming negligence against Doe and manufacturing and design flaws against the Manufacturer. These are or resemble tort claims that would have been legal claims in 1991. Furthermore, the remedy, damages, is a legal remedy. If the trial court also needed to address facts related to the injunction (where there is no right to a jury trial), the court would need to decide whether the facts were overlapping or distinct. Facts which overlapped would be determined by the jury and then relied on by the judge to preserve Paul's right to a jury trial. If the facts were distinct, they could be determined by the judge for the injunction or by the jury for the tort claims.
 

Question V. E
 

Special interrogatories would allow the judge to know how the jury specifically ruled on each issue of fact. The judge would need to rely on facts determined by the jury if those same facts related to the preliminary injunction. The interrogatories would allow the judge to more effectively apply facts determined by the jury to the substantive law regarding the preliminary injunction.
 

Question VI. A
 

Paul must file his notice of appeal within 30 days (28 USC §2107). As time limits for appeal are jurisdictional and lapses are rarely excused for good cause, it's very important that Paul file on time. His appeal would be due July 31, 1990.
 

Question VI. B
 

That depends. If Doe motioned for a directed verdict at tile close of Paul's evidence and renewed at the close of all evidence and filed for JNOV 10 days after judgment, the court can consider the request (Rule 50). JNOV may be granted if there is no legally sufficient evidentiary basis for a reasonable juror to find for a party (Rule 50). For Paul to withstand the motion, his evidence would have to have done more than point with equal force to two possible outcomes (Reid), and he would have to be more than a scintilla over equipoise (Penn. RR). As Paul's tire examiner is of questionable credibility and Doe's witnesses of impeccable credibility, Doe definitely has the stronger case. However, Paul would probably provide enough evidence that a reasonable juror could find for him.
 

Question VI. C
 

The independent jury investigation issues are enough to reverse the trial court's ruling. A new trial should be granted for a major error that Could have affected the trial (Rule 59). This investigation would probably be enough to convince an appellate Court that the trial court judge abused his or her discretion in denying the motion for a new trial. However, Manufacturer would have had to have raised this issue below if aware of it (Rule 46). The jury composition issue would probably not be enough. First, the jurors would have to be incapable of impartiality or a threat to the integrity of the jury (28 USC § 1866). The fact that the Manufacturer is a major employer in the county is likely not enough to meet this standard. Second, objections must be raised or they will be waived on appeal (Rule 46). The attorney for Manufacturer should have raised this objection within 7 days of its discovery or before voir dire began (28 USC § 1867).
 

Question VI. D
 

When the appellate court reverses a denial of judgment as a matter of law, the appellee is given an opportunity to argue for a new trial (Rule 50). Paul would have the opportunity to make this argument and may succeed only if a new trial was requested as a remedy.
 

Question VI. E
 

The appellate court should uphold this motion. The appellate court will use an abuse of discretion in its review because the order denying amendment is an order only the trial court judge can make. The trial court judge must look first at whether the claim arises out of the same transaction or occurrence per Rule 15. This claim may not arise of the same transaction or occurrence. The case is about negligence in a car accident. Paul wants to amend to include the intentional manufacture of faulty vehicles and an anti-trust claim. These issues don't directly relate to the car accident and the condition of Paul's car in that accident. The trial Court then must consider whether Paul has acted in good faith and how the Manufacturer would be prejudiced. Paul's good faith aside, the Manufacturer would be prejudiced. Paul motions just before and during trial that the complaint should be amended. This doesn't give the manufacturer time to respond. and there's no apparent reason Paul couldn't raise this issue earlier. The trial court correctly decided not to allow amendment.