Answer Key

Mid-term examination in Civil Procedure.

Prof. Eric S. Janus.

Fall 1997

Note on alternative answers: Students may suggest alternative answers in writing to Prof. Janus by 5 p.m., Tuesday, Oct. 28. Submissions must be in writing and contain your Exam ID number. Effective submissions will contain cogent explanations and justifications for the alternate answer. Advocacy for alternative answers will not be entertained after the exams are returned.

Question 1. For each claim stated, which rule(s) provide(s) the standard(s) for determining whether Paula's claim is detailed enough? (1 point)





Question 2. DEC wants to raise the defense that the lawsuit is filed in the wrong venue. At this stage of the lawsuit, what choices does DEC's lawyer have for raising that defense? State the choice(s) and the rule(s). (1 point)











Facts (continued): DEC makes a motion to dismiss for improper venue. On July 15, 1997, the Court issues an order denying the motion.

Question 3. How long does DEC have in which to serve its Answer? State the length and the rule. (1 point)

Facts (continued): DEC serves and files its Answer. In its Answer, it denies many of the allegations of the Complaint, including the facts about fraudulent misrepresentation.

Question 4. May DEC include in its Answer the defense of failure to state a claim upon which relief may be granted? Answer Yes or No, and state the rule that supports your answer. (1 point)



On August 1, 1997, Paula moves to amend her Complaint to state a claim for defamation. She claims that DEC's statements to prospective employers were false and defamatory.

Question 5. Regarding this motion to amend, mark each of the following statements True (T) or False (F).

T F Paula may not amend her Complaint because more than 20 days have elapsed since the answer was served. (1 point) [Explanation:(1) Amendment is possible even after the expiration of 20 days.]

T F Paula may amend her Complaint only if she obtains leave of court or the consent of the other side. (1 point) [Explanation:* Under Rule 15(a), leave of court or consent of opponent is required to amend pleadings after the service of a responsive pleading.]

T F In judging whether the amendment "relates back," the judge should consider whether the original Complaint gave DEC sufficient notice of the new claim. (1 point) [Explanation:* See Rule 15(c)(2). Adequacy of notice is the major factor the court will consider.]

T F The amendment does not "relate back" because it contains an entirely new cause of action ("defamation" was not a claim in the original Complaint). (1 point) [Explanation:* Even "new" causes of action may relate back if the original pleading gave sufficient notice.]

Facts (continued): When Paula first met with her attorney, Alice, Paula told Alice that she was sure that DEC had made false statements about her to prospective employers. Alice "took her word for it," and did not check into the matter further. During discovery, Alice determines that no such statements were made by DEC. Also, Alice discovers a case, decided by the Supreme Court of Mitchell six months prior to the filing of the Complaint, in which the Court held that Mitchell does not recognize the tort of negligent infliction of emotional distress. Alice was completely and honestly unaware of this case when she signed the Complaint. Alice then withdraws from representing Paula, and Burton, a lawyer from a different firm, takes over. A week later, Burton goes to a pre-trial conference with the Court at which he informs the judge that Paula continues to ask for relief on all counts of her complaint. DEC serves a motion for Rule 11 sanctions, and then files the motion.

Question 6. Regarding DEC's motion for Rule 11 sanctions, mark each of the following True (T) or False (F), state the Rule that supports your answer, and write a one sentence reason for your answer.

Burton cannot be sanctioned because he never signed a pleading asserting any claims. (2 points)



Paula cannot be sanctioned because she is a client who is represented by an attorney. (2 points)







Alice cannot be sanctioned because she relied on her client for factual information, and her failure to find the case was a good faith mistake. (2 points)





Question 7. Arrange the following events in proper order along the timeline. Indicate the time periods between each of these events. You may use the indicated abbreviations on the timeline. (3 points)



- CC -- Conference with the Court to schedule discovery

- BD -- Beginning of discovery

- RC -- Report to Court.

- CA -- Conference among attorneys to discuss discovery/disclosures

- ID -- Initial disclosures.



Question 8. For each of the following, state the applicable disclosure or discovery method (e.g. "interrogatories") that permits or requires disclosure or discovery of the indicated matter. Also, state the rule(s) that governs the method.

The existence of a document, in possession of DEC, describing the terms and conditions of Paula's job. (1 point)





A copy of the document described in question a. (1 point)



Detailed questioning of an employee of DEC (name unknown to Paula) with knowledge of the Company's personnel policies. (1 point)



Copies of letters that Paula sent to her friend Jean (now in Jean's possession) about the firing. (1 point)

Admission from Paula that DEC did not give false information to

prospective employers. (1 point)



An order from the Court that DEC must keep confidential any information it obtains from discovery regarding Paula's emotional condition. (1 point)



1. 0 Note: I have provided an explanation here for your understanding of the answer. No explanation was required on the exam for this question.