Practice Examination in Civil Procedure

Fall 1995

Professor Eric S. Janus

Instructions

You should spend about 1 hour taking this practice examination.

The Answers to Part 1 of this examination will be written on this examination paper.

In the actual exam, only the following materials would be 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 6 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.

—–

Part 1. Short Answers.

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.

Part 2. Essay Question.

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. On February 1, 1994, attorney 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.