Civil Procedure -- Professor Janus -- Fall 1993

Practice Exam -- 90 Minutes

Instructions: This is a practice exam. It will not be graded or collected. You may take the exam in class or at home. Suggested time: 90 minutes. Suggested materials: Case book, rule book, class notes and handouts, personally prepared outlines. There is one continuous factual situation. There are two questions placed within the facts. Each question can be answered without referring to the facts which follow it.

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Katz, Inc., (hereinafter, "Katz") is a manufacturer of computer components. It makes phrenolators and pandemonium contention accumulators (PCAs). Katz has a business relationship with Byrd Co., (hereinafter, "Byrd") which assembles computers. Katz and Byrd have entered into a contract, dated 1990, which requires Katz to sell to Byrd, and Byrd to buy from Katz, 1500 PCAs per month for three years at a price of $49.78 per PCA.

In 1991, there were radical new advances in pandemonium contention technology, making Katz's PCAs nearly obsolete. Byrd began returning the PCAs to Katz, claiming that they were defective, and refusing to pay for them. After negotiations failed to resolve the matter, Katz brought suit against Byrd for breach of the 1990 contract. The suit was filed in Federal Court on December 1, 1991 and served on December 3, 1991.

The Complaint stated the following:

1. Plaintiff is Katz, Inc.

2. Defendant is Byrd Co.

3. Katz, Inc. is a citizen of Minnesota. Byrd Co. is a citizen of Iowa. The Court has jurisdiction because of diversity of citizenship.

4. Plaintiff and defendant entered into a contract for the sale of pandemonium contention accumulators (PCAs).

5. Defendant has breached that contract.

WHEREFORE, plaintiff demands judgment against defendant for damages resulting from that breach.

The Complaint was properly signed.

On December 22, 1991, Byrd served a motion on Katz. The motion stated:

Defendant moves the court for an order as follows:

1. Dismissing plaintiff's complaint for failure to state a claim.

2. In the alternative, ordering plaintiff to provide a more specific statement of its claim.

This motion is made upon the grounds that plaintiff's claim fails to state facts sufficient to satisfy the requirements of the Rules of Civil Procedure.

The Motion was properly signed.

Question 1. Should the court grant defendant's motion? Discuss.

The court denies the motion on January 10, 1992. Byrd serves its answer on Katz on January 21, 1992. The Answer states as follows:

1. It denies each and every allegation of Plaintiff's Complaint.

The Answer was properly signed.

The case proceeds to discovery. On October 30, 1992, after the completion of discovery, Byrd makes a motion to amend its Answer. It seeks to add the following to its Answer:

2. The Action is improperly venued.

3. The Court lacks subject matter jurisdiction over the Complaint.