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Flashcards in MBE Wrong Questions Deck (23)
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1
Q

A man and a woman were in a two-car traffic accident. Immediately after the accident, the man was treated by a physician at a nearby hospital’s emergency room. The man later filed a negligence action against the woman in federal district court, seeking compensatory damages. The woman now seeks discovery regarding the emergency room physician’s observations, opinions, and treatment of the man.

Is the woman entitled to discovery regarding that information?

A

Yes, because the opinions were developed for purposes other than for trial and litigation.

2
Q

A credit card company filed a civil action against a consumer in federal district court seeking to recover the unpaid balance on the consumer’s account. The credit card company properly served process on the consumer, but the consumer failed to file or serve a timely answer to the complaint. The clerk of court on motion of the credit card company made an entry of default, but default judgment has not been entered.

On which grounds may the court set aside the entry of default?

A

If the consumer demonstrates that there was good cause for failure to give an answer timely and a viable defense. A court can set aside a entry of default for good cause shown.

3
Q

While driving in State A on vacation, a man collided with a car driven by a woman. The woman whose domicile is in State B, was also on vacation in State A at the time of the accident. The woman filed a negiligence action against the man who was domiciled in State C in a federal court in State C, alleging negligence and seeking damages for the injuries she sustained in the State A accident. Does State C federal Court have personal jurisdiction over the man for purposes of the action?

A

Yes, because courts in State C have general personal jurisdiction over the man for any claim that may be asserted against him.

4
Q

The resident of the District of State A properly brought a diversity action in federal court against a resident of the District of State B and a resident of the District of State C for a cause of action that arise from events that occurred in District of State D. In which Judicial Districts is venue proper?

A

Only in State D. When all the defendants are residents of the same state then venue is proper where the d resides. However if defendants are from different states it is where the cause of action occurred.

5
Q

A property owner residing in State A owned a beach house in State B. The property owner ran an ad in State B and State C seeking to hire a caretaker for the property. A State C resident responded to the ad. The property owner interviewed and hired the State C resident at the house in State B and then returned to State A. The property owner then fired the State C resident. The State C resident plans to file an action against the property owner pursuant to federal employment discrimination statutes, claiming that the property owner fired her on the basis of race. In which federal court is venue proper?

A

Federal venue is proper in State A and State B. Federal venue in civil actions is proper in 1) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and 2) the district in which a substantial part of the events or ommissions giving rise to the claim occurred. If there is no district anywhere in the United States that satisfies i or 2, the action may be brought in a judicial district in which any defendant is subject to the courts personal jurisdiction with respect to such action.

6
Q

The developer contracted with a general contractor to build an office building, and completion of the building was two years late. The developer filed a breach of contract action in federal district court against the general contractor, seeking damages caused by the delay. The general contractor filed a third-party claim against a major subcontractor, claiming that the subcontractor caused any delay and should be liable to the general contractor for anything the general contractor has to pay the developer. The subcontractor believes that the developer interfered with the subcontract and that the developers interference causeed not on the delay but cost reruns. May the subcontractor assert a claim in the pending action against the developer seeking payment for cost overruns?

A

The third party may do this if the claim arises from the same transaction or occurrence. So they could asset it but they can also wait. If it was the General Contractor, it would be a compulsory counterclaim so that would be barred.

7
Q

Can a plaintiff amend a complaint even if the statute of limitations passed for the claim?

A

Amendments substituting a new defendant for one originally named are allowed and the amendment will relate back to the time the original complaint was filed if i) the claims in the amendment arise from the same transaction or occurrence as the claims set out in the pleading, ii) within the time allotted for serving the original complaint (90 days from filing) the new defendant received such notice of the action that it will not be prejudiced in defending on the merits and knew or should have known that the action would been against it (new defendant). Here the manufacturer recieved no notice of the action within the 90 days related for service and could not have known about the plaintiffs mistake.

8
Q

A seller sold his house to a buyer. Termite problems subsequently necessitated 95k worth of repairs to the house. The buyer filed an action based on fraud against the seller in federal court. the buyer alleges the seller told him prior to the sale that the house had no termites. the buyer also alleges that the seller knew at the time he made a statement about the termite problem. the seller denies saying this. In a deposition, of the sellers realestate agent the buyers attorney asks if the agent ever heard the selller mention a termite problem. Is this question within the scope of discovery?

A

Yes, because it seeks relevant information. A party must disclose all information relevant to his claim or defenses that is not privileged or protected by the work-product doctrine.

9
Q

What is the work product doctrine of discovery?

A

Documents prepared in anticipated of litigation by a party or its representatives are not discoverable unless the opposing party can show substantial need and that it cannot obtain the materials in an alternative way without undue hardship. (ex. attorney asks grocery manager to interview employees after a slip and fall).

10
Q

After a motion to compel the defendant to produce documents, will the court impose sanctions on the defendant at that time?

A

No, not if the defendant complies with the request. but it must require the defendant to pay the reasonable expenses to the party for their efforts to make the motion to compel.

11
Q

A car owner sued a crane operator for negligence in a federal court because the crane operator backed over and crushed her car. During jury selection, the car owner’s lawyer wished to exercise on of her preemptory challenges to excuse some potential jurors. What would be grounds to object to a preemptory challenge?

A

Preemptory challenges allow an attorney to disqualify a potential juror because the juror displays an attitude or some characteristic that appears unfavorable to the attorney’s client but that does not rise to the level of bias that would presen grounds for a challenge for cause. A party cannot use preemptory challenges if the court suspects the challenge is for race, national origin, religion or gender, which violates the juror’s equal protection rights under the Fourteenth Amendment. IF the Court detects a pattern of excluding jurors for any of these reasons the opposing party can object and the party may be required to justify the challenge by providing other non-objectionable means. excluding a second african american without any reason would be cause to object

12
Q

When do you waive your right to raise an issue on appeal?

A

Procedural mistakes are asserted by parties by raising a timely objection at trial. Failure to timely object waives the right to raise that issue on appeal. Here, the failure to present the requested jury instructions is a procedural error and the failure to object made the guy waive his right to appeal.

13
Q

What do you do to obtain a default judgment after the clerk makes an entry of default?

A

Judge enters a default judgment. A defendant against whom a default is entered loses the right to contest liability unless the entry of default is set aside. However, the amount of damages must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages. If the defendant appeared, even though he has not answered, he must be notified of the request for a default judgment by first class mail at least seven days before the hearing on the application for a default judgment. Appearance includes any actual formal appearance before the court and any other action that clearly indicates that the defendant intends to contest the case on the merits. An appearance is like challenging the court for personal jurisdiction.

14
Q

When may a motion for new trial be granted?

A

A motion for new trial may be granted because of an error during trial (usually going to the admissability of evidence or the properiety of the jury instructions), because the verdict is against the weight of the evidence (limited to cases where the judge finds the verdict seriously erroneous), because of jury misconduct, or because the verdict is excessive or inadequate.

15
Q

What is a motion for judgement as a matter of law (directed verdict)?

A

this may be made by any party any time BEFORE submission of the case to the jury.

16
Q

What is a remittur?

A

If the judge believes that the jury’s compensatory damages award is so excessive as to shock the conscience (or in a diversity case, if the award meets the state standard for excessiveness), the judge may order a new trial or may offer the alternative of remittitur. When offered remittiur, the plaintiff is given the choice between accepting an award less than that awarded by the jury or submitting to a new trial. Judge cannot require the plaintiff to accept the lesser award.

17
Q

Is a cross claim ever compulsory? meaning do you have to assert it and if you dont you cannot bring it up in a second action?

A

Cross claims are never compulsory. You can wait and assert it in a independant action. Opposite for compulsory counterclaim

18
Q

What are the elements of issue preclusion?

A

A judgement binds the plaintiff or defendant (or their privies) in subsequent actions on different causes of action between them (or their privies) as to issues actually litigated and essential to the judgment in the first action.

19
Q

Is there issue preclusion if a default or consent judgment is entered?

A

No, a default or consent judgment because the issues would have been tried if the case would have gone forward.

20
Q

After a single vehicle accident, the passenger filed a negligence action in federal district court against the driver to recover for a whiplash injury allegedly suffered in the accident. On the advice of his attorney, the passenger consulted and retained five physicians in search of one who would serve as an expert witness on his behalf at trial. Four of the physicians determined that the passenger had suffered no injury. Obviously, the passenger does not intend to use those four physicians as witnesses at trial.

May the driver obtain in discovery the opinions of the four physicians whom the passenger does not intend to have testify at trial?

A

The opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested.

21
Q

Two dismissal rule

A

A dismissal by notice is without prejudice unless the plaintiff has previously dismissed any federal or state court action on the same claim, in which case the dismissal by notice is with prejudice. (This is known as the “two dismissal rule.”) Thus, the second dismissal by the plaintiff here operates as an adjudication on the merits.

22
Q

A construction contractor brought a breach of contract claim in federal court against a homeowner who had hired the contractor to build an apartment over an existing garage. The action turned on the scope of the work covered by the contract. The contractor and the homeowner were the only witnesses at the bench trial, and they strongly disagreed about the scope of the work. At the end of the trial, the judge stated findings of fact on the record but never issued a written opinion. Neither party objected to the findings. The judge found in favor of the homeowner, and the contractor appealed.

Is the appellate court likely to overturn the findings?

A

No because the appellate court must give due regard to the trial judge’s determination of witnesses credability. In a bench trial, the judge acts as the fact-finder, and the appellate court will give deference to the judge’s findings of fact. There are no facts in the question to raise any question about the judge’s findings, and he must have found the homeowner to be the more credible witness. Under Federal Rule of Civil Procedure 52, the judge’s findings of fact (and conclusions of law) may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.

23
Q

A patient domiciled in State A sued a surgeon domiciled in State B in a federal court in State A, alleging claims for malpractice. The surgeon moved to dismiss the action for lack of personal jurisdiction. The court denied the motion and set discovery cutoff and trial dates.

The surgeon has appealed the denial of the motion.

Should the appellate court hear the merits of the surgeon’s appeal?

A

No, the court does not have appellate jurisdiction because this is not a final judgment. case is still pending.