Examination in Civil Procedure
Fall 1994
Professor Eric S. Janus
Instructions
You have two hours to complete this examination.
The Answers to Part 1 of this examination will be written on this examination paper. Please write your exam number on each sheet of this examination paper now.
Permitted materials: Only the following materials are permitted in the exam room:
Your casebook, Yeazell, Martin and Landers.
Your Rules Supplement.
Class handouts.
Notes and outlines which you have participated in preparing.
Dictionaries (legal or other).
The examination consists of 9 pages, consecutively numbered. Check to make sure that you have all pages now. If you do not, immediately notify your instructor or Student Services of the problem.
Write clearly.
Recommended Time Allocation and Point Allocation:
The exam is two hours and has 100 total points. It consists of two parts.
Part 1 counts for 50 points. It consists of 15 short answer questions. Each is worth 3.33 points. Recommended times: 4 minutes per question. 1 hour total.
Part 2 counts for 50 points. It is an essay question based on a single factual scenario. Recommended time: 1 hour.
Part 1. Short Answers. 15 Questions. 4 Minutes Each. 3.33 points each. One hour total.
Each of the following short answer questions concerns a lawsuit between P and D filed in Federal Court. Answer each question briefly in the space provided on this test sheet. Give a one- or two-sentence reason for your answer. Cite relevant provisions of rules or cases.
I. P serves his Complaint on D on December 1, 1993. On December 4, 1994, D serves her Answer. On December 10, 1994, P wishes to amend his Complaint to assert a new claim against D. The statute of limitations on the new claim has not yet expired. Which of one the following best describes P's situation?
A. P can amend his Complaint "as a matter of course," since there is no responsive pleading to D's Answer.
B. P can amend his Complaint, but only if it "relates back" to the original claim.
C. P can amend his Complaint, but only if he gains permission from the court or from D.
D. P has waived the right to amend.
Answer to Question I.
II. On December 12, 1993, D wishes to assert the defense of lack of personal jurisdiction. This defense was not included in D's Answer. Which of the following best describes D's situation?
A. D can amend her Answer to assert the defense, but only if she gets permission from the court or P
B. D can assert the defense in an amended answer, which she can make "as a matter of course."
C. D can assert the defense by motion.
D. D has waived the right to make the defense.
Answer to Question II.
III. The pleadings in the case of P vs. D read as follows:
P
vs. Complaint
D
-o0o-
For his Complaint against D, P states as follows:
1. [Appropriate jurisdictional allegations]
2. On June 1, 1993, D's automobile collided with P's automobile.
3. At the time of the collision, D was operating her automobile in a negligent manner.
4. P was damaged in the amount of $100,000.
WHEREFORE, P demands judgment in the amount of $100,000.
[appropriate signatures]
P
vs. Answer
D
-o0o-
D, for her Answer to P's Complaint, states:
1. D admits the allegations of paragraphs 1 and 2 of P's Complaint.
2. D denies the allegations of paragraph 3 of P's Complaint.
3. D is without sufficient information to form a belief as to the truth or falsity of paragraph 4 of P's Complaint.
4. P's own contributory negligence caused the collision.
WHEREFORE, D prays that P take nothing by his Complaint, and that the same be dismissed.
[appropriate signatures]
For each of the following state whether P or D has an obligation to disclose without awaiting a discovery request. Support your answer with an appropriate citation and a one- or two-sentence reason.
A. The name, W, of an eyewitness to the accident whose identity is known by P's lawyer's clerk.
Answer to question III.A.
B. The name of the mechanic who told D, a week before the accident, that her brakes were defective.
Answer to question III.B.
C. An itemized statement of P's damages.
Answer to question III.C.
D. The name of V, an eyewitness to the accident whose location and identity P did not know when the initial disclosures were made, but whose identity was discovered by P six months after the lawsuit began.
Answer to question III.D.
I. For each of the following, identify the discovery method, if any, best suited to obtaining the indicated information. Support your answer with an appropriate citation and a one- or two-sentence reason.
A. Receipts and other written records in D's possession related to her maintenance of her car.
Answer to question IV.A.
B. The name and address of each mechanic who worked on P's car.
Answer to question IV.B.
C. The condition of eyewitness W's eyesight at the time of the accident.
Answer to question IV.C.
D. Information about accident safety research done by Ford Motor Company concerning the car model involved in the accident.
Answer to question IV.D.
II. Very briefly note the consequences of each of the following. Support your answer with an appropriate citation and a one- or two-sentence reason.
A. D failed to disclose the name of U, an eyewitness to the accident. D calls U at trial as a witness.
Answer to question V.A.
B. P asked D to admit that it was snowing at the time of the accident. D denied the statement. P called an expert meteorologist to testify at trial on that point.
Answer to question V.B.
III. Using the facts and dates given above in problems I through V, answer the folowing questions. You may use the calendar which is attached to the back of this exam. For each answer, indicate the rule(s) you relied on and your method.
A. By what date must the court issue its initial scheduling order?
Answer to question VI.A.
B. If the court schedules its initial scheduling conference for the date identified in A, what is the latest date on which the parties may hold the meeting to plan for discovery?
Answer to question VI.B.
C. Given your calculations above, when may discovery begin?
Answer to question VI.C.
End of Part 1. Continue to next page for Part 2
Part 2. Essay Question. One Hour. 50 Points.
Instructions. Read the following factual statement. Then write an essay in your blue books identifying and analyzing all of the civil procedure issues which are raised by the facts. Write on only one side of each blue book page. If your writing is of poor legibility, please write only on every other line.
Facts:
Maya Alexander is the sole shareholder of two corporations. Maya's Software, Inc., develops and distributes adventure games on computer disks. Alexander Development Company develops and distributes language instruction software on computer disks.
Jan Lewis has developed a complex and innovative software program for teaching Norwegian. Jan thinks that Maya has copied the code from his Norwegian program. Jan hires Milton, a lawyer, to investigate bringing suit against Maya for software copying. Milton hires Edmina, a software engineer, to analyze the software code on Maya's software to determine whether it has been copied from Jan's. Edmina writes a report to Milton which states that it is doubtful that the software was copied. Milton shares this information with Jan, but Jan insists that Milton bring suit against Maya. On February 1, 1994, Milton files suit on Jan's behalf against Maya's Software Company in Federal District Court. The Complaint is properly drafted and is signed by Milton and Jan. On March 1, 1994, the statute of limitations on Jan's claim for software copying runs out. On April 1, 1994, Maya is served with the Summons and Complaint. On July 1, 1994, Milton discovers that he has sued the wrong corporation. He makes a motion to the court to change the defendant from Maya's Software Company to Alexander Development Company.
Virginia is an expert in software development. She is an employee of Alexander Development Company. She helped develop the software which is at issue in Jan's suit. Maya plans for Virginia to testify at the trial. Jack is a software expert. He was hired by Jan as a consultant to help develop the Norwegian software. Now that trial is approaching, Milton, Jan's lawyer, has hired Jack as a consultant to help prepare for trial. Jack will not testify at trial. Edmina also will not testify at trial.
The parties engage in disclosures and discovery regarding experts.
Prior to trial, Jan fires Milton and hires Katherine as his lawyer. Katherine represents Jan at the trial. The judge finds in favor of the defendant. The defendant makes a motion for sanctions under Rule 11.