MBE

CIVIL PROCEDURE
WORKSHOP

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 Civil Procedure
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CIVIL PROCEDURE QUESTIONS
Question 1
A corporation filed a breach of contract action
against another corporation in the United States
District Court for the District of State A on the
basis of diversity of citizenship jurisdiction. The
action seeks $80,000 in damages. The plaintiff
corporation was incorporated in State B and has
its principal place of business in State C. The
defendant corporation was incorporated in State
C and has its principal place of business in State
A. The defendant corporation filed a motion
to dismiss the action for lack of subject matter
jurisdiction.
Will the defendant corporation’s motion be
granted?
(A) Yes, because both corporations are citizens
of State C.
(B) Yes, because the defendant corporation is a
citizen of the state in which the action was
filed.
(C) No, because the plaintiff corporation is a
citizen of State C and the defendant corpo-
ration is a citizen of State A.
(D) No, because, while both corporations are
citizens of State C, the plaintiff corporation
is also a citizen of State B and the defen-
dant corporation is also a citizen of State A.
MPQ 201 workshop civil procedure S.indd 3
CIVIL PROCEDURE WORKSHOP 3.
Question 2
A building materials supplier, who is a
citizen of State A, and a contractor, who is a
citizen of State B, had a contract dispute. The
contractor drove to the supplier’s home in State
A to discuss possible settlement of the dispute.
The discussions were not successful. As the
contractor backed out of the supplier’s driveway,
the contractor accidently hit the supplier’s car,
damaging it significantly. The supplier sued
the contractor in federal court, asserting both a
breach of contract claim and a negligence claim
for the damage done to the supplier’s car. The
supplier’s complaint seeks $71,000 in damages
for breach of contract and $5,000 in damages to
pay the cost of repairs to the car.
Does the federal court have subject matter
jurisdiction over the supplier’s action?
(A) Yes, because the amounts of the supplier’s
two claims may be aggregated and thus
meet the amount in controversy require-
ment.
(B) Yes, because the supplier’s two claims are
related and therefore may be aggregated to
satisfy the amount in controversy require-
ment.
(C) No, because the supplier’s two claims do
not arise from the same transaction or
occurrence and therefore may not be aggre-
gated to satisfy the amount in controversy
requirement.
(D) No as to the negligence claim but yes as to
the breach of contract claim.
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 4. CIVIL PROCEDURE QUESTIONS
Question 3
A driver was killed in a two-car accident
in State A. The deceased driver was a citizen
of State B, and the driver of the other car is a
citizen of State A. The executor of the deceased
driver’s estate filed a negligence action in federal
district court on behalf of the deceased driver
against the State A driver, seeking $250,000.
The executor is a citizen of State A.
Does the federal court have diversity of
citizenship jurisdiction over this action?
(A) No, because the executor and the defendant
are both citizens of State A.
(B) No, because federal courts will not exercise
diversity of citizenship jurisdiction over
probate matters.
(C) Yes, because the executor of the plain-
tiff’s estate is a citizen of State A and the
deceased plaintiff is a citizen of State B.
(D) Yes, because the deceased plaintiff was a
citizen of State B and the defendant is a
citizen of State A.
MPQ 201 workshop civil procedure S.indd 4
Question 4
A seller entered a contract with a buyer
under which the buyer agreed to purchase
certain corporate securities for $500,000. The
buyer refused to go through with the purchase,
contending that the entire transaction was void
because of federal securities statutes. The seller
thus sold the securities to another party but
was able to sell them for only $420,000. The
seller filed an action against the buyer in federal
district court, alleging that the transaction did
not violate federal securities statutes and seeking
$80,000 for the buyer’s breach of contract. The
seller and the buyer are both citizens of the same
state.
Does the federal court have subject matter
jurisdiction over the action?
(A) Yes, because the action raises the federal
issue of whether the transaction violated
federal securities statutes.
(B) Yes, because the amount in contro-
versy exceeds the required minimum for
purposes of federal question jurisdiction.
(C) No, because the buyer and seller are
citizens of the same state and the action
does not arise under federal law.
(D) No, because the amount in controversy for
purposes of federal question jurisdiction is
not sufficient.
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Question 5
A citizen of State A filed a breach of contract
action against a citizen of State B in a State A
state trial court. The State B defendant timely
and properly removed the action to the United
States District Court for the District of State A.
The defendant then filed a motion to dismiss the
action based on insufficient service of process.
Following a hearing, the court found that service
was proper and denied the motion. The defen-
dant then filed her answer, responding to the
merits of the complaint and asserting that the
case should be dismissed on the grounds that
another action was pending between the same
parties for the same cause in a State B state
court. The State A Rules of Civil Procedure
provide that a party waives the right to seek
dismissal on that ground if the party files a
pre-answer motion to dismiss and does not assert
that ground in the motion.
Should the federal court hold that the defen-
dant has waived the right to seek dismissal based
on the pendency of the same cause in another
court?
(A) Yes, because this action was commenced
in a State A state court, so the federal court
must apply State A law.
(B) Yes, because this action is in a federal
court in State A on the basis of the court’s
diversity of citizenship jurisdiction, so the
federal court must apply State A law.
(C) No, because this issue is unlikely to affect
the outcome of the action or to create
forum-shopping, so the federal court should
apply federal law, under which the defen-
dant has not waived this defense.
(D) No, because this issue is governed by the
Federal Rules of Civil Procedure, under
which the defendant has not waived this
defense.
MPQ 201 workshop civil procedure S.indd 5
CIVIL PROCEDURE WORKSHOP 5.
Question 6
A researcher and an analyst had employ-
ment contracts with a corporation. The corpo-
ration fired them because it believed they had
conspired to give its trade secrets to a compet-
itor. Knowing that the conspiracy allegations
were not true, the researcher and the analyst
sued the corporation in federal district court
for breach of their employment contracts. The
researcher seeks $100,000 in damages and the
analyst seeks $50,000. They are both citizens of
State A. The corporation is incorporated in State
B, and its principal place of business is in State
B.
Does the federal district court have subject
matter jurisdiction over both of the claims?
(A) Yes, the court has diversity of citizenship
jurisdiction over both claims because the
amounts of their related claims may be
aggregated to satisfy the amount in contro-
versy requirement.
(B) Yes, the court has diversity of citizenship
jurisdiction over the researcher’s $100,000
claim and supplemental jurisdiction over
the analyst’s $50,000 claim.
(C) No, the court does not have subject matter
jurisdiction over the analyst’s $50,000
claim because the claims of both plain-
tiffs may not be aggregated to satisfy the
amount in controversy requirement.
(D) No, the court does not have subject matter
jurisdiction over either claim because the
breach of contract claim is based on state
law.
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 6. CIVIL PROCEDURE QUESTIONS
Question 7
A pedestrian was injured in a car accident
involving two cars. The pedestrian filed a negli-
gence action against both drivers in federal
district court, seeking to hold them jointly and
severally liable for $500,000. The pedestrian is
a citizen of State A, and both drivers are citizens
of State B. The first driver then asserted a cross-
claim against the second driver, claiming that
the second driver’s negligence was the sole cause
of the accident and seeking to recover from the
second driver $15,000 for the damage done to
the first driver’s car.
Does the federal court have subject matter
jurisdiction over the cross-claim?
(A) No, because the cross-claim is between two
citizens of the same state.
(B) No, because the amount of the cross-claim
is too small.
(C) No, because there is no supplemental
jurisdiction over the cross-claim unless it is
related to a federal question claim asserted
in the same action, and there is no federal
question claim.
(D) Yes, the court has supplemental jurisdiction
over the cross-claim.
MPQ 201 workshop civil procedure S.indd 6
Question 8
An investor filed a civil action against her
broker in a State A state court seeking $30,000
for violation of federal securities statutes. The
investor is a citizen of State B and the broker is a
citizen of State A.
May the broker remove the action to federal
district court?
(A) No, because the amount in controversy is
too small for federal subject matter juris-
diction.
(B) No, because the defendant is a citizen of
the state from whose court the action is
removed.
(C) Yes, the broker may remove the action to
federal district court on the basis of federal
question jurisdiction.
(D) Yes, the broker may remove the action to
federal district court on the basis of federal
diversity of citizenship jurisdiction.
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Question 9
A car buyer, a resident of State A, wished
to purchase a new car. After shopping both
online and in person for the best price, the
buyer decided to purchase a car from a dealer in
State B. The buyer drove to the State B dealer-
ship, signed a sales contract, paid for the car,
and drove the car back home to State A. Three
months later, the buyer was in an accident in
State A while driving the new car. The other
driver in the accident was a resident of State B
who was just passing through State A. The other
driver filed a negligence action against the buyer
in a court in State B.
Does the buyer have sufficient contacts with
State B such that a State B court could exercise
personal jurisdiction over the buyer for the negli-
gence action?
(A) Yes, because the buyer had purposeful con-
tacts with State B.
(B) No, because the other driver’s claim does
not arise from the buyer’s contacts with
State B, and the contacts are insufficient to
create general personal jurisdiction.
(C) No, because the buyer did not benefit in any
way from the contacts with State B.
(D) No, because the buyer’s contacts with State
B were not purposeful.
MPQ 201 workshop civil procedure S.indd 7
CIVIL PROCEDURE WORKSHOP 7.
Question 10
A hunter residing in State A visited a website
created and operated by a hunting equipment
company. The company is a State B corporation,
and its headquarters and all its facilities are in
State B. It sells its products in several stores in
State B and through its website. Its marketing
efforts and most of its sales are in State A and
State B. Using the company’s website, the hunter
ordered a hunting stand. The hunter paid for
the stand and shipment to State A by providing
his credit card information on the company’s
website. After the stand arrived at the hunter’s
home in State A, the hunter used the stand while
on a hunting trip in State C—a very popular
hunting destination. The stand collapsed, causing
severe injuries to the hunter.
The hunter filed a products liability action
against the company in a State C court. The
company filed a motion to dismiss the action on
the ground that the State C court lacks personal
jurisdiction over it. Although the company’s
website is accessible in State C, the company
does not otherwise advertise there, and it does
no business there. There is no evidence that the
company has sold any products in State C.
Does the company have sufficient contacts
with State C such that a State C court may
exercise personal jurisdiction over it?
(A) Yes, because the company’s website is
continuously accessible in State C so that
people there may purchase products from
the company at any time.
(B) Yes, because the company could foresee
that its customers would carry the compa-
ny’s hunting products on hunting trips to
other states—particularly states where
hunting is popular.
(C) No, because personal jurisdiction cannot be
based on Internet contacts.
(D) No, because the company does not have
sufficient purposeful contacts with State C.
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 8. CIVIL PROCEDURE QUESTIONS
Question 11
An automobile crash victim intends to file a
negligence action based on diversity of citizen-
ship jurisdiction against a driver in federal court
for injuries sustained in an automobile accident
that occurred in State A. The victim resides in
State B, and the driver resides in State C. State
A, State B, and State C all have only a single
federal judicial district.
In which federal district court(s) is venue
proper?
(A) The District of State A only.
(B) The District of State C only.
(C) The District of State A and the District of
State C.
(D) The District of State A, the District of State
B, and the District of State C.
MPQ 201 workshop civil procedure S.indd 8
Question 12
A zoologist was moving to State A from State
B, where she had lived her entire life. She was
driving a truck and trailer that contained all of
her possessions across the country when she was
involved in a severe accident in State C. After
being released from the hospital, but before
suit was filed, the zoologist proceeded to State
A, where she rented an apartment and found a
job. The driver of an automobile involved in the
severe accident intends to file a negligence action
against the zoologist in federal district court.
The driver is a citizen and resident of State D.
In which federal district(s) is venue proper?
(A) The District of State C only.
(B) The District of State C and the District of
State B.
(C) The District of State C and the District of
State A only.
(D) The District of State C, the District of State
D, and the District of State A.
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Question 13
A plaintiff from State A filed a breach of
contract action in a federal court in State B. The
defendant in the action is a State B corpora-
tion. The corporation’s president and registered
agent, the only officer having express authority
to receive service of process on behalf of the
corporation, was out of the country for several
months. State B’s rules of civil procedure,
however, authorize service on a corporation by
serving any “officer, managing or general agent,
or any agent authorized to receive service.”
State B’s rules also authorize service of process
by certified mail. The plaintiff thus sent the
summons and complaint to the defendant corpo-
ration’s only vice president, who resides in State
B. The vice president signed the certified mail
return receipt.
If the corporation files a motion to dismiss
the action for improper service of process, how
should the court rule?
(A) Deny the motion, because service of pro-
cess was proper.
(B) Deny the motion, because the defendant
waived service of process by allowing its
only agent authorized to receive service to
leave the country.
(C) Grant the motion, because, despite what
state rules allow, service on a corporation
sued in federal court must be on the officer
or agent of the corporation who is autho-
rized by the corporation to receive service
on behalf of the corporation.
(D) Grant the motion, because, despite what
state rules allow, service on a corporation
sued in federal court may not be made by
certified mail.
MPQ 201 workshop civil procedure S.indd 9
CIVIL PROCEDURE WORKSHOP 9.
Question 14
After filing her complaint in federal district
court, a plaintiff mailed to a defendant by
ordinary first-class mail the following: duly
executed copies of the complaint and summons,
a request that the defendant waive service of
process, two copies of a waiver-of-service form,
and an addressed, prepaid return envelope. The
defendant signed the waiver-of-service form
and returned a copy to the plaintiff. Fifty days
after the plaintiff mailed the forms to the defen-
dant and 25 days after the defendant returned
the signed form to the plaintiff, the plaintiff
filed a motion for entry of default and a default
judgment. The following day, the defendant filed
and served his answer.
Was the defendant’s answer timely?
(A) No, because the defendant may no longer
file an answer once the time for filing a
response to a complaint has expired and
the plaintiff has filed a motion for default
judgment.
(B) No, because the Federal Rules of Civil
Procedure require a defendant to file a
response to a complaint within 21 days after
being served with process.
(C) Yes, because the defendant filed his answer
less than 28 days after he returned the
waiver of service form.
(D) Yes, because a defendant who waives
service of process is allowed additional
time in which to respond to the complaint,
and the time had not yet expired.
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 10. CIVIL PROCEDURE QUESTIONS
Question 15
A customer became ill from meat he
purchased at the “The Corner Grocery” store
in City A. The legal name of the store is “The
Corner Grocery, Inc.” The customer’s attorney
instituted a diversity action in federal district
court, mistakenly naming as the defendant “The
Corner Grocery” in City B, whose legal name
is “The Corner Grocery Company, Ltd.” The
two are separate legal entities, but their stock is
owned by the same persons in the same propor-
tions. The complaint specifically described
the store from which the pork was purchased,
including its City A address.
Approximately one month after filing the
complaint, and after the statute of limitations
had expired, the customer’s attorney served
process on an individual who is the presi-
dent and 50% shareholder of both stores. The
named defendant, the City B store, then filed
its answer denying liability on the grounds that
the customer never visited the City B store and
never bought anything there. Upon learning that
he had named the wrong store as defendant, the
customer’s attorney filed a motion to amend the
complaint to substitute the name of the correct
defendant for the incorrect defendant originally
named. After the court allowed the amendment,
the new defendant filed an answer asserting that
the claim against it was barred by the statute of
limitations. In response, the customer’s attorney
asserted that the amended complaint is not
barred because it asserts a claim that arises from
the same transaction as the original complaint
and therefore relates back to the time of the
original complaint.
MPQ 201 workshop civil procedure S.indd 10
Is the amended complaint barred even
though it relates back to the time of the original
complaint?
(A) No, because the customer appears to have
acted in good faith and exercised reason-
able care in naming the proper defendant.
(B) No, because the new defendant received
timely notice of the action so as not to be
prejudiced in defending the merits and
knew or should have known that the action
would have been brought against it but for
a mistake concerning the proper party’s
identity.
(C) Yes, because the proper defendant was
not served with process within the time
prescribed for service of the original
complaint.
(D) Yes, because both the original and the
amended claims are barred by the statute of
limitations since service of process did not
occur until after the statute of limitations
expired.
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Question 16
A bar prep company discovered that its
copyrighted content was being used in an
online simulated exam that its competitor was
administering in a few days. The company filed
a petition for an ex parte order to direct the
competitor to immediately remove that content
from its website. The company submitted an
affidavit specifying why immediate and irrepa-
rable injury will result if the exam is adminis-
tered, and offered to provide security for any
costs or damages incurred by the competitor if
it was determined that the order was wrongfully
issued.
Should the court issue the order?
(A) Yes, because the company submitted an af-
fidavit with specific facts showing immedi-
ate and irreparable injury.
(B) Yes, because the competitor will receive
notice of the order once it is issued by the
court.
(C) No, because a court cannot issue an injunc-
tion unless the adverse party has notice of
the hearing.
(D) No, because the company has not provided
sufficient certification for obtaining an ex
parte order.
MPQ 201 workshop civil procedure S.indd 11
CIVIL PROCEDURE WORKSHOP 11.
Question 17
Two citizens of State A were injured in State
B when the taxi in which they were riding was
in an accident. The two State A citizens intend
to file tort claims against the taxi driver, a citizen
of State B, in federal district court seeking over
$100,000 each.
May or must they assert their claims in federal
district court in a single civil action?
(A) They must assert their claims in a single
action because their claims arise from the
same accident.
(B) They may assert their claims in a single
action if they wish, or they may file
separate actions.
(C) They may not assert their claims in a single
action because they are not asserting a
single undivided interest.
(D) They may not assert their claims in a single
action because each plaintiff is seeking
damages for his own discrete bodily
injuries.
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 12. CIVIL PROCEDURE QUESTIONS
Question 18
Three drivers were in a traffic accident in
State A. The three drivers were citizens of State
A, State B, and State C, respectively. Only
the driver from State C sustained any injuries
and damage. The driver from State C filed a
tort action against the State A driver, seeking
$100,000 in damages. The State A driver
believes that he was not at fault in any way and
that the driver from State B was the sole cause of
the accident. Assume State A does not recognize
any claim of contribution among joint tortfea-
sors.
May the State A driver assert a third-party
claim against the State B driver in the pending
action, alleging that the State B driver was the
party at fault and should pay for the State C
driver’s injuries?
(A) Yes, because third-party claims are permit-
ted as long as they arise from the same
transaction or occurrence as the original
action.
(B) Yes, because the State A driver’s third-
party claim is derivative of the State C
driver’s original claim.
(C) Yes, provided the State A driver obtains
leave of the court.
(D) No, the State A driver may not maintain the
third-party claim.
MPQ 201 workshop civil procedure S.indd 12
Question 19
The plaintiff in a negligence case was injured
in a car accident with the defendant. The plain-
tiff’s attorney retained a physician to examine
the plaintiff and to testify regarding the plain-
tiff’s injuries. After the physician examined
the plaintiff, the plaintiff’s attorney discussed
the physician’s findings with the physician.
The plaintiff’s attorney and the physician also
discussed what the physician should include in
the expert witness report that will be provided
to the defendant. The defendant then conducted
a deposition of the physician. During the deposi-
tion, the defendant’s attorney asked the physician
to describe what was said in his conversations
with the plaintiff’s attorney. The plaintiff’s
attorney objected to those questions.
Are the defendant’s questions regarding the
plaintiff’s attorney’s discussions with the physi-
cian properly subject to discovery?
(A) No, because the communications between
the plaintiff’s attorney and the physician
are protected from discovery under the
work product doctrine.
(B) No, because the communications between
the plaintiff’s attorney and the physician are
protected by the attorney-client privilege.
(C) Yes, because the attorney does not represent
the physician and therefore the communica-
tions between the plaintiff’s attorney and
the physician are not privileged.
(D) Yes, because the communications between
the plaintiff’s attorney and the physician are
relevant to determine the basis for opinions
and statements in the physician’s expert
report.
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Question 20
A former shareholder of a corporation filed an
action against the corporation’s board of direc-
tors, alleging that the directors’ wrongful actions
diminished the value of the corporation and its
stock. The former shareholder served a request
for production of documents that included a
request for any documents relating to the value
of the corporation. The corporation produced
a number of documents, but withheld certain
documents that were written by its attorneys,
claiming that the documents were protected
from discovery under the attorney-client privi-
lege. Without contacting or conferring with the
corporation or its lawyer, the former shareholder
filed a motion to compel production of the
withheld documents, claiming that they were not
covered by the privilege. The court ruled that
the documents were not privileged and had to be
produced.
What will be the likely result if the former
shareholder seeks to recover costs or attorneys’
fees related to the motion or to have sanctions
imposed on the corporation?
(A) The shareholder may not recover costs or
attorneys’ fees or have sanctions imposed.
(B) The shareholder may recover the costs of
asserting the motion to compel but may
not recover any attorneys’ fees or have
sanctions imposed.
(C) The shareholder may recover the costs
and attorneys’ fees incurred in asserting
the motion to compel, but may not have
sanctions imposed.
(D) The shareholder may recover costs and
attorneys’ fees incurred in asserting the
motion to compel, and may have sanctions
imposed.
MPQ 201 workshop civil procedure S.indd 13
CIVIL PROCEDURE WORKSHOP 13.
Question 21
The plaintiff and defendant in a negligence
action filed in federal district court were in
a two-car accident. The defendant’s attorney
properly gave notice of and commenced a
deposition of an eyewitness to the accident.
Attorneys for both parties were present at the
deposition. During the deposition, the defen-
dant’s attorney asked the witness a leading
question, and the plaintiff’s attorney did not
object. At the time of trial, the eyewitness was
out of the country. Therefore, the defendant’s
attorney sought to read a portion of the witness’s
deposition testimony into evidence at trial,
including the leading question and the witness’s
response to it. The plaintiff’s attorney objected
at trial to the reading of the leading question and
the witness’s response.
Is the leading question and response properly
admissible in evidence at trial?
(A) No, because none of the deposition testi-
mony is admissible in evidence under these
circumstances.
(B) No, because, while the deposition testimony
is generally admissible under these circum-
stances, the court may exclude the leading
question and answer on the basis of the
plaintiff’s objection at trial.
(C) Yes, because the deposition testimony is
generally admissible under these circum-
stances, and the plaintiff waived any objec-
tion to the leading question because the
plaintiff did not object to the question at the
deposition.
(D) Yes, because once a part of the deposition
testimony is admissible under these circum-
stances, all of the deposition is admissible
regardless of the plaintiff’s objection.
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 14. CIVIL PROCEDURE QUESTIONS
Question 22
A hotelier entered into a contract with a
merchant to have the merchant build and
deliver custom furniture having a total cost of
$1 million. The hotelier is a resident of State
A and the merchant is a resident of State B.
The merchant completed the furniture but the
hotelier refused delivery, claiming that the furni-
ture was not as the hotelier and merchant had
agreed. The hotelier then filed an action against
the merchant in federal district court, claiming
breach of contract and seeking the return of a
$100,000 deposit. The merchant filed an answer,
denying liability and denying that it breached
the contract. At the same time, the merchant
filed and served a counterclaim asserting that the
hotelier had breached the contract and seeking
the $900,000 balance due. A week after being
served with the merchant’s answer and counter-
claim, the hotelier filed a voluntary dismissal of
the action.
Is the hotelier’s dismissal effective?
(A) Yes, because the party that commenced an
action may always terminate it.
(B) Yes, because a plaintiff may voluntarily
dismiss an action of right if the plaintiff
does so within 21 days of the defendant
filing an answer.
(C) No, because, while the hotelier other-
wise would have had the right to dismiss
the action, the hotelier cannot volun-
tarily dismiss the action because of the
merchant’s pending counterclaim.
(D) No, because, after a defendant files an
answer, an action may be dismissed only by
a stipulation signed by all parties or by an
order of the court.
MPQ 201 workshop civil procedure S.indd 14
Question 23
An office furniture supplier filed a breach
of contract action against a law firm in federal
district court to recover the balance due on
an account for furniture it supplied. The law
firm filed a motion to dismiss the action on the
ground that service of process was improper.
Following a hearing, the court held that service
was proper and sufficient. Two more months
passed without the law firm filing an answer.
The supplier then filed a motion to have the clerk
of court make an entry of default, and the clerk
did so.
What procedure must the supplier follow to
obtain a default judgment against the law firm?
(A) File a motion to have the clerk of court en-
ter the default judgment, and the clerk may
do so without the law firm receiving any
further notice of the motion.
(B) File a motion to have the clerk of court
enter the default judgment, and the clerk
may do so as long as the law firm receives
additional notice of the motion for default
judgment.
(C) File a motion to have the judge enter the
default judgment, and the judge may do so
without the law firm receiving any further
notice of the motion for default judgment.
(D) File a motion to have the judge enter the
default judgment, and the judge may do so
as long as the law firm receives additional
notice of the motion for default judgment.
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Question 24
The owner of property bordering a river
properly brought suit in federal court against
a power company, alleging that the power
company dumped radioactive waste water from
one of its nuclear plants into the river, causing
the property owner many health issues and
resulting in the diminution of his property’s
value. The suit sought damages and a prelimi-
nary injunction forbidding the power company
from dumping any waste into the river. The
power company was provided with notice of
the hearing, to which it sent its lawyer. During
the hearing, the power company claimed that it
has complied with applicable state and federal
environmental regulations, and stated that it
will continue to comply with the regulations
if the injunction is denied. The judge granted
the preliminary injunction and set a date for a
pretrial conference, as required by the Federal
Rules of Civil Procedure.
May the power company immediately appeal
the judge’s granting of the preliminary injunc-
tion?
(A) No, because the order is not final.
(B) No, because the question has not been certi-
fied as one falling within the Interlocutory
Appeals Act.
(C) Yes, but only if the power company takes
a default judgment, thereby making the
judgment final.
(D) Yes, because the order is immediately
appealable as of right.
MPQ 201 workshop civil procedure S.indd 15
CIVIL PROCEDURE WORKSHOP 15.
Question 25
A plaintiff filed a single cause of action
against a defendant on a claim based on products
liability in state court. The plaintiff contends
that a space heater that he was using during the
winter short-circuited, causing a fire that burned
down his house. In July, the plaintiff’s case
against the defendant went to trial, and the jury
determined that the fire was caused by faulty
wiring in the plaintiff’s home. The following
September, the plaintiff filed a breach of
warranty action against the defendant in federal
court, properly invoking the court’s diversity
jurisdiction. The defendant, after properly
being served with process, files an answer with
an affirmative defense of claim preclusion as
his first pleading or motion. The defendant,
at an appropriate time, then files a motion for
summary judgment based on the assertion of
claim preclusion.
How should the court rule on the defendant’s
motion?
(A) Deny the motion, because the application
of claim preclusion is a factual issue for the
jury to determine.
(B) Deny the motion, because the plaintiff’s
breach of warranty theory is not the same
cause of action as the plaintiff’s products
liability claim.
(C) Grant the motion, because claim preclusion
applies to bar the claim.
(D) Grant the motion, because the defendant,
by raising the issue in his first pleading or
motion, did not waive the defense of claim
preclusion.
STOP
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