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CIVIL PROCEDURE II MULTIPLE CHOICE EXAMINATION WORKSHOP RELEASED QUESTIONS SPRING 2013
Professor Cameron For Question Nos. 1 through 3, refer to the following facts. After watching television advertisements for Dizzyland, an amusement park located in State D, Turista, a tourist from the State T, visited Dizzyland. While riding a roller coaster, Turista suffered a broken arm. After having her injury treated, Turista stopped by a gift shop, where she picked up a souvenir. Before leaving the amusement park, Turista was arrested by Dizzylands security detail and handed over to the authorities. The district attorney responded by pursuing State v. Turista, a criminal prosecution for petty larceny. Turista denied the charge and defended solely on the ground that she had bought and paid for the souvenir. Following a jury trial, a verdict of acquittal was returned and a judgment in Turistas favor was entered thereon. 1. In federal district court in State T, Turista now brings Turista v. Dizzyland #1, a civil action for damages due to false imprisonment. Turista files a motion under Fed. R. Civ. P. 56(a) for partial summary judgment conclusively to establish that she had bought and paid for the souvenir. Turistas motion should be -(a) (b) (c) (d) Granted, because the issue was necessarily decided in State v. Turista. Granted, because the judgment was the product of a full and fair opportunity to litigate in State v. Turista. Denied, because Turista did not have sufficient incentive to litigate the charge of petty larceny in State v. Turista. Denied, because Dizzyland was not a party or in privity with a party in State v. Turista.

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2. Same facts as No. 1, but assume Turista prevailed on the merits in Turista v. Dizzyland #1. In a proper court, Turista now brings Turista v. Dizzyland #2, a negligence action to recover for the broken arm she suffered on the roller coaster. Citing the doctrine of res judicata, Dizzyland files a motion to dismiss the action. The motion should be -(a) Granted, because Turista felt well enough to buy and pay for a souvenir after being treated, thereby undermining the basis for the judgment issued in Turista v. Dizzyland #1. Granted, because the action is between the same parties, and arises out of the same transaction or occurrence, as Turista v. Dizzyland #1. Denied, because due to the lack of personal jurisdiction over Dizzyland in State T, there was no binding judgment in Turista v. Dizzyland #1. Denied, because Dizzylands security detail was a necessary and indispensable party who should have been joined in Turista v. Dizzyland #1.

(b) (c) (d)

3. Same facts as No. 1, but assume Dizzyland prevailed on the merits in Turista v. Dizzyland #1. In a proper court, Turista now brings Turista v. Dizzyland #2, a negligence action to recover for the broken arm he suffered on the roller coaster. The only material allegation in the entire complaint states: Defendants misbehavior put Turista in a world of hurt. How should Dizzyland respond to the complaint? (a) (b) (c) (d) File a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. File a motion for judgment on the pleadings. File a motion for summary judgment. File a motion to strike the material allegation as redundant, immaterial, impertinent, or scandalous.

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4. Data Corp., a company incorporated and having its principal place of business in State D, made an initial public offering (IPO) of fifty million shares of its common stock. Data Corp. estimated the value of each share of stock at $1. Purchasers from every state and territory of the United States purchased shares at this price during the ISO. Under 20 percent of such purchasers were from State P. One of those purchasers, Po, a citizen of State P, bought a single share of stock. Shortly after Pos purchase, Data Corp. announced that it was broke and intended to file for protection under Chapter 11 of the U.S. Bankruptcy Code, a federal statutory scheme governing corporate reorganizations and liquidations. (Data Corp. has not yet actually filed for Chapter 11 protection.) The value of each share of Data Corp.s stock fell to $0. Po, acting as the named representative of all purchasers, in every U.S. state and territory, of Data Corp. stock during the ISO, brought an action against Data Corp. for fraud in state court in State P. Data Corp. responded by removing the action to federal district court in State P. If Po challenges the removal by filing a motion to remand the action to State P state court, the motion should be -(a) (b) Granted, because Pos loss of $1 does not satisfy the amount in controversy requirement. Granted, because the purchasers are from every U.S. state and territory, making it inevitable that at least one of the absent class members is from State P, which would destroy complete diversity of citizenship. Denied, because the amount in controversy exceeds the sum or value of $5 million, and less than one-third of the class members are from the forum State P. Denied, Pos action states a substantial federal question claim under the U.S. Bankruptcy Code.

(c)

(d)

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5. Selby orally agreed to convey Blackacre to Bywater for $100,000. The next day Bywater sent Selby an envelope containing a check for $50,000 and a note stating: This is my down payment on Blackacre. A month later, oil was discovered on Blackacre, and the land substantially increased in value. Selby then repudiated his agreement with Bywater and instead sold Blackacre to Bonny for $1 million. Assume the jurisdiction in which Blackacre is located has adopted both the Federal Rules of Civil Procedure and the Statute of Frauds, which requires contracts for the sale of land to be in writing. Bywater timely brought an action against Bonny to enforce the agreement. In answering the complaint, what should Bonny do? (a) (b) (c) (d) Plead the Statute of Frauds as an affirmative defense only. Implead Selby as a person who is or may be liable to Bonny only. Both plead the Statute of Frauds as an affirmative defense and implead Selby as a person who is or may be liable to Bonny. Ignore the Statute of Frauds, because Bywaters note takes the agreement out of the Statute of Frauds.

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For Question Nos. 6 through 8, refer to the following facts. 6. Poppins, a proper nanny, suggested that Banks, a banker whose children she cared for, take the children to work one day so they could see for themselves the type of work life father leads. Winifred, Banks wife and mother of the children, said: Thats a wonderful idea because I have an errand to run anyway. Banks instructed the children to bring along their pennies so they could open savings accounts. But once at the bank, the children refused to deposit their money. Dawes, the director of the bank, tried anyway to snatch the childrens pennies from their hands. The children resisted and caused a panic among the banks regular customers. Dawes blamed Banks for the panic and fired him. Banks then threatened to fire Poppins because she was the one who had suggested the bank visit in the first place. If Poppins brings an action against Dawes for tortious interference with her employment contract with Banks, then Dawes should -(a) (b) (c) (d) File a motion to dismiss for failure to state a claim upon which relief can be granted and seek to join Banks by impleader. File alternative motions to dismiss for lack of personal jurisdiction and improper venue. File an action in interpleader naming Poppins, Banks, and the children as potential claimants to the stake. File a motion to dismiss for failure to join Winifred as a necessary and indispensable party.

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7. Same as No. 6, but assume Dawes has a potential counterclaim against Poppins for tortious interference with Dawes business relations with his regular customers. What should Dawes do? (a) (b) (c) (d) File an answer asserting a counterclaim against Poppins. File an answer asserting an affirmative defense against Poppins. File a motion to strike Poppins allegations redundant, immaterial, impertinent, or scandalous. File a motion for a more definitive statement, because it is unclear on what basis Poppins is proceeding against Dawes.

8. Same as No. 6, but now the Childrens Social Services Agency is considering a civil action against Winifred for child abuse and neglect. The Agencys draft complaint alleges, among other things, that Winifred had said regarding the bank visit: Thats a wonderful idea because Im too busy living a life of leisure to care for the children. The allegation is inaccurate. . If the Agency actually files and serves the draft complaint, Winifred should -(a) (b) (c) (d) File and serve a motion for judgment on the pleadings only. File and serve a motion for pleading sanctions only. File and serve both a motion for judgment on the pleadings and a motion for pleading sanctions. File neither a motion for judgment on the pleadings nor a motion for pleading sanctions.

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9. A bus operated by Busco went over the side of a tortuous mountain road. The thirty passengers aboard sustained injuries. Later, they timely filed separate negligence claims against Busco for personal injuries. In each action, the two issues that were actually litigated were whether (1) Driva, the employee of Busco who drove the bus, was wearing her prescription eye glasses, and (2) Busco properly maintained the brakes on the bus that Driva was driving. After prevailing in each of the first fifteen actions to reach judgment, Busco lost the sixteenth action. Pass then brought the seventeenth action, which is pending. In that action, Pass filed a motion for partial summary judgment conclusively to establish that Driva was not wearing her prescription eye glasses. The motion should be -(a) (b) (c) Granted, because a reasonable jury must find that Driva was not wearing her prescription eye glasses. Granted, because Pass is not entitled to judgment as a matter of law. Denied, because although two issues were actually litigated, it is unclear whether the first issue (wearing prescription eye glasses) or the second issue (properly maintaining the brakes) was necessarily decided. Denied, because Pass had a full and fair opportunity to intervene in each of the first fifteen actions, but failed to do so.

(d)

10. Of the following policy reasons, which is not a valid criticism of the new plausibility standard articulated by Bell Atlantic Corp. v. Twombley and Ashcroft v. Iqbal, which are sometimes collectively referred to as Twiqbal? (a) The new standard moves away from the notice pleading regime heralded by the introduction of the Federal Rules of Civil Procedure, and toward the old fact pleading regimes associated with the common law and code pleading eras. The new standard overturned 50 years of settled case law as to the meaning of the term claim in Rule 8(a)(2), thereby generating much confusion among judges and litigants. The new standard makes it tougher for less wealthy and pro se litigants to pursue complex claims in the federal courts. The new standard screens out from the civil justice system more potentially frivolous lawsuits than was the case under the no set of facts standard articulated by Conley v. Gibson.

(b)

(c) (d)

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