Sample Answer
Practice Examination in Civil Procedure
Fall 1995
Professor Eric S. Janus
Answer to Question I.
C. Under rule 15(a) P can amend as a matter of course only if the amendment is made before a responsive pleading to the pleading to be amended. Since D has answered (this is a responsive pleading), rule 15(a) requires P to obtain leave of court.
Answer to Question II.
B. This is governed by Rule 12(b)(1). Since D made no pretrial motions, she may include the "disfavored" defense of "personal jurisdiction" in her answer or in an amendment to the answer made as a matter of course under 15(a). Such amendments to answers can be made w/in 20 days of the answer. D is within that period.
Answer to question III.A.
Yes. R26(a)(1) requires names and addresses of persons likely to have discoverable info. relevant to disputed facts. Whether the accident was "negligent" is disputed, and an eyewitness is likely to have relevant info. The rule requires disclosure of information "then reasonably available to" the party, so the clerk's info would have to be disclosed.
Answer to question III.B.
The condition of the brakes is not a "disputed factual alleged with particularity." Therefore, P probably does not have to disclose.
Answer to question III.C.
Yes. 26(a)(1)(C).
Answer to question III.D.
Yes. See 26(c)(1). The new information shows that the initial disclosure was "incomplete."
Part 2. Essay Question.
| Answer: | Comment |
| The factual scenario suggests two major issues and several minor issues. I will discuss each of the major issues first, and then discuss the minor issues as time permits. | Introduction. Suggests that the answer is well-organized. |
| Amendment of Complaint and Relation Back. Milton's motion on July 1 is a motion to amend the Complaint. It is governed by Rule 15(a). Since the motion seeks an amendment that changes the name of the party being sued, and the change comes after the statute of limitations has run, the amendment also raises the question of whether the amendment relates back to the date on which the action was originally commenced, February 1 (the date of filing; see Rule 3.) | Main issue id.
Give enough of the facts to show that you know what it is that triggers a particular analysis: here a 15(a) analysis. |
| The facts do not make clear whether Maya has answered the complaint. I assume she has, since more than 20 days have passed since service (Rule 12). If she has, then Milton must seek the court's permission to amend (R15(a).) If there has been no answer yet, then the amendment may be made as a matter of course (R15(a) -- prior to the required responsive pleading). On the motion to amend, the burden would be on Maya to show a good reason for not permitting the amendment (amendments to be "freely" granted "when justice so requires." R.15(a)). The main inquiry will be prejudice. Since the amendment is being sought relatively early, prejudice should not be a big problem. (However, prejudice is also a consideration in 15(c). See below.) So, the motion to amend probably satisfies 15(a) and should be granted, if the amendment will relate back. | If there is some ambiguity in the facts, identify it, and, ideally, discuss the implications of resolving it both ways. Or, resolve it in the way that makes the problem make the most sense. |
| 15(c) covers the question of relation back. Since Milton seeks to change the party or the name of the party against whom the claim is brought, 15(c)(3) governs. First, the claim must "arise out" of the same conduct as the orig. claim. This is the case since they are the same claims. Second, the party to be brought in (Maya's Software Co.) must have received enough notice not be prejudiced in maintaining its defense, and the notice must have been rec'd during the time set out in R4(m). Milton would argue that Maya's Software got notice of the suit when Maya was served on April 1, since Maya is sole shareholder of both companies. April 1 is w/in 120 days of February 1 (the day the suit was filed), and hence falls within the 4(m) period. This suggests that Maya's Software would not be prejudiced, but MSC could offer evidence showing otherwise. | Hone in on the particular section of the rules that governs. Explain why. |
| Next, Milton would have to demonstrate that Maya's Software Co. knew, or should have know, that, but for the mistake, they would have been sued, and this knowledge occurred within the 4(m) period. If Maya's knowledge is the same as her company's knowledge, then the new defendant had knowledge within the 4(m) period. By reading the complaint, they would have known that the wrong defendant had been sued and that they were the proper defendant. Thus, it appears that all of the provisions of 15(c)(3) are satisfied and the amendment would relate back. | Do not copy large portions of the rules into your answer. Reference enough of the rule so that the reader knows that you know what the operative part of the rule is. |
| Expert Disclosure and Discovery: I will discuss these issues on a person-by-person basis. | |
| Virginia: Virginia is an "expert" who will testify, but she is also an "event witness" whose facts and opinions were developed in the normal course of business. Thus, Virginia's identity may need to be disclosed under 26(a)(1), depending on the level of "particularity" with which the allegations of the Complaint were pled. In addition, Maya would need to disclose V's id as a testifying expert under 26(a)(2)(A). If V's duties regularly involve giving expert testimony (doubtful, from the facts), Maya would have to include a detailed written report. In any event, Jan could take V's deposition, though she would have to wait until after the report, if one is required. R26(b)(4)(A). | |
| Jack: Jack is both an "event witness" and a
non-testifying retained expert. Since Jack is
not testifying, no disclosures are required
under 26(a)(3). R26(b)(4)(B) says that Maya
may discover information about Jack only
upon a showing of special circumstances.
This probably covers only information that
Jack developed in anticipation of litigation
or for trial. His "event-witness" information
is probably fully discoverable, though the
language of the rule is a little ambiguous on
this. The policies underlying the protection
of expert witnesses -- no freeloading of
litigation resources and protection of
litigation strategies -- would not protect
"event-witness" information. If this
interpretation is correct, then Jack's id
would have to be disclosed in the initial
26(a)(1) disclosures (person w/discoverable
information). If my interpretation of
(b)(4)(B) is correct, then Maya can do full
discovery of the "event witness" information
and opinions of Jack's, but would be able to
discover "trial prep" information only upon
a showing of special circumstances, as set out
in that section.
If I'm wrong about that section, then there would be no discovery about Jack w/o a showing by Maya of special circumstances. Then, an issue would be raised about whether Jack's ID. would need to be disclosed pursuant to 26(a)(1), since that section requires disclosure only of "discoverable" information. Since Jack's information would only be contingently discoverable, it is not clear whether his ID. would need to be disclosed. If it was not disclosed, then most likely a notation to that effect would need to be made in the disclosures, in order to comply with 26(b)(5). |
Note ambiguities in the application of
the rule. Suggest the most likely
interpretation, using references to
underlying polices, if applicable.
Do a "branching" analysis. I.e., follow through on your analysis using the other rule interpretation. |
| There is no information given about Edmina. This must be a mistake, so I won't answer this part. |