Civil Procedure Exam Review Questions

1. Civil Procedure Exam Review Questions Spring 2006

2. Assume that you represent the plaintiff, Ms. Smith, in a slip and fall case. You have contacted Dr. Joanna All, an orthopedist who saw the plaintiff at your request. Dr. All gave you a written report on June 10, 1999. In it, Dr. All states that she believes that the plaintiff's injuries were due, at least in part, to pre-existing bone deficiencies. Thus, Dr. All believes, the defendant is not responsible for all the plaintiff's injuries. Given her opinion, you do not intend to call Dr. All as a witness at trial. You have not named her as a witness or expert witness and you definitely do not want to disclose the written report that she gave you. On June 15, 1999, the defendant got a court order allowing him to have an orthopedist perform a Rule 35 examination on the plaintiff. On June 16, the defendant served you with a request for production seeking "all reports from all health care providers who have examined the plaintiff for injuries related to the fall that is the subject of this lawsuit." Identify (and briefly discuss) the issues you need to think about in deciding how to answer this request for production.

3. The plaintiff, Ms. Smith, has told her attorney that at the time of the fall, she was "dead drunk." She had been to El Azteca and had had 4 margaritas in under two hours and then came stumbling home. The defendant has sent the plaintiff an interrogatory which asks: " Did you drink any alcoholic beverages on the day that you fell? If your answer is yes, state what you drank, and the time that you drank it." The plaintiff's attorney objects to this interrogatory on the ground that the information sought is protected by the work product immunity because it is information she (the plaintiff's attorney) obtained during her investigation of the case. As the defendant's attorney, what would you say to the plaintiff's attorney to persuade her to answer the interrogatory without the need for a motion to compel?

4. Assume that Alberta Smith, sued El Azteca because she slipped and fell on a wet spot on the restaurant floor. El Azteca defended on the grounds that the plaintiff was contributorily negligent because she was drunk. They also defended on the ground that the wet spot on the floor had not been there long enough for them to have a duty to wipe it up (they did not have notice of it prior to plaintiff's fall). The jury returned a verdict explicitly finding El Azteca not liable to the plaintiff for her injuries because she was contributorily negligent and because El Azteca did not have a duty to clean up the spot on the floor. Smith, on the way home from El Azteca, crossed the center line and ran into Fred Brown. Brown sued Smith for his injuries and he sued El Azteca under the dram shop liability statute (i.e. that El Azteca was liable because it knowingly served a drunk person alcohol). May Brown get summary judgment on the issue of either the fact that Smith was drunk at the time of the wreck or on the fact that El Azteca knowingly served a drunk person alcohol?

5. Suki, a citizen of Florida, believes she was poisoned when she ate fish at Emory's cafeteria. She filed suit in federal court in Georgia based upon diversity jurisdiction (as a result of the alleged poisoning, she suffered severe personal injuries). Emory believes: A. Suki's injuries were probably not caused by food poisoning; B. If they were caused by food poisoning from fish she ate at Emory, Emory was not wholly responsible for the poisoning because the fish was probably spoiled when it was purchased from Hank's Fishery. Hank's Fishery is a Florida corporation with its principal place of business in Florida. What procedural options are open to Emory with regard to Hank's Fishery and what tactical considerations should Emory consider when deciding what to do with regard to Hank's Fishery?

6. Plaintiff’s attorney takes the statement of Witness A, who says that Witness B had also been present at the accident scene. Defendant sends an interrogatory asking for the names and addresses of “all persons known to Plaintiff who may have witnessed the accident.” May Plaintiff refuse to identify Witness B on the ground that discovery of B constitutes work product?

7. Plaintiff alleges that defendant called him a thief, and defendant denies making the statement. On the issue, plaintiff introduces only evidence that the defendant disliked him. At the close of plaintiff’s case defendant moves for directed verdict. As the trial judge how do you rule on the motion and why?

8. P sues for damages in construction of a house, asserting theories of breach of warranty and negligence. D moves to dismiss for lack of personal jurisdiction. The motion is granted, and the case is dismissed. P later sues D using the identical complaint in another state’s court. D pleads claim preclusion as an affirmative defense in his answer. What result and why?

9. Dumper, Inc. is in the waste disposal business. Two lakefront property owners on Lake Grey sue Dumper for disposing of waste in their lake in violation of federal and state waste disposal statutes and regulations. The defense is that no dumping occurred. Following trial (with the judge sitting as fact-finder) the judge finds that the dumping did occur and orders judgment for the plaintiffs. Learning of this result 85 homeowners on the lake join together to file suit against Dumper for damages caused by the unlawful dumping. Which party (if any) would raise the issue of collateral estoppel, would they succeed, and why / why not?

10. Offensive Non-Mutual Collateral Estoppel • Relevant Inquiries that guide consideration of ONCE: • 1) Did the D have the same incentive to vigorously litigate the issue in the 1st action as may motivate him with respect to the 2nd action? • 2) Did the P adopt a “wait and see” posture or was there a legitimate reason for not participating in the 1st action? • 3) Are there different procedural devices available in the 2nd action that are outcome determinative?

11. Sally filed a complaint against George and process was served on Day 1. On Day 19, prior to filing an answer, George filed a motion under 12(f) to strike impertinent matter from the complaint. The next day George filed a motion under Rule 12(b)(2) to dismiss for lack of personal jurisdiction. Has George waived his personal jurisdiction defense? Why / why not?