Michael Green's CivPro Blog

Essay Question from the 2010 CivPro Exam

Essay Question 7. 

P accidentally drove his car off of the road, hit a tree, and lost an eye. P's insurance company, D, regularly sends an insurance adjuster to the scene of serious accidents to determine whether the accident is covered by the policy, whether third parties might be responsible, and what the appropriate amount of compensation should be. In the course of his investigation, the insurance adjuster inspected the site for any skid marks on the road left by P’s car. Soon after the insurance adjuster’s investigation, P made statements that caused D to think P intentionally drove the car into the tree in order to commit suicide, which would make the accident not covered by the policy. As a result, D refused coverage and P sued D for $500,000 under state contract law in the Federal District Court for the Southern District on New York. An important issue in the case was the placement and length of the skid marks left by P’s car on the road, since they could indicate whether P had indeed intentionally driven his car off the road. A private investigator hired by P inspected the site two days after the insurance adjuster. The private investigator made measurements of the marks that, unfortunately, would suggest suicide. P’s attorney submitted an interrogatory on D asking for the placement and length of the skid marks, hoping to get the insurance adjuster's measurements. D claimed that the measurements are work product. Is D right?

Multiple Choice Question from the 2008 CivPro Exam

Question 8.

P (a domiciliary of California) is suing D1 (a domiciliary of South Dakota who works in North Dakota for the D2 Corp. as a low-level broker) and the D2 Corp. (a brokerage company incorporated in the state of California with its principal place of business in North Dakota). P’s suit was filed in the federal district court for District of Minnesota and is for federal securities fraud. P is asking for $100,000 alternatively from either D1 or the D2 Corp., for damages due to misrepresentations concerning securities that D1 made (on behalf of her employer) to P in California.

Hard Multiple Choice from the 2005 CivPro Exam

1. P (a citizen of New Jersey) is suing Officer D (a citizen of New Jersey) in the Federal District Court for the Southern District of New York under 42 U.S.C. § 1983 for violations of his constitutional rights. P alleges that D violated his Fourth Amendment rights in connection with a search of his car while he was in New York City. D answers, denying that the search was a violation of P’s Fourth Amendment rights. In his answer, D joins a setoff against P, alleging that P has failed to pay D under a contract the two entered into a year earlier. In the contract, P bought D’s Oldsmobile Cutlass. D is asking for a setoff of $5000.

A setoff is a counterclaim brought by a defendant against a plaintiff, alleging that if the defendant is liable to the plaintiff, this liability is to be reduced by the amount that the plaintiff is liable to the defendant. A setoff asks only that the defendant’s liability be reduced by the amount of the setoff, not that the defendant receive affirmative relief from the plaintiff if the defendant is not found to be liable to the plaintiff.

What is the most plausible argument that there is subject matter jurisdiction for D’s setoff?

Can Federal Courts Bring Up Claim Preclusion Sua Sponte?

That's what Vahid asked me after class today. My response was that I didn't know but that since claim preclusion protects courts, not just parties, against repetitive litgation, I thought they probably could. Turns out I guessed right. Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008) (Posner, J) ("Nor was it improper for the district judge to invoke res judicata even though the defendants had failed to argue it. The doctrine is not based solely on the defendant's interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance of unnecessary judicial waste." (quotation marks omitted)).

Hard Essay Question from the 2007 CivPro Exam

With updated answer:

Essay Question 3.    


P (a citizen of California) sues D (a citizen of Nevada) for negligence under California law in the Federal District Court for the Southern District of Texas. P’s suit concerns a car accident that took place between P and D in California. In his complaint, P asks for $1,000,000 in damages for the loss of his arm in the accident. P alleges that the source of personal jurisdiction over D is a plot of land owned by D (and worth $35,000) that is located in the Southern District of Texas. Under Texas law, limited appearances are not allowed: If the source of personal jurisdiction over the defendant is the defendant’s property, the defendant may limit a judgment against him to the value of the property only by defaulting. If the defendant appears to defend on the merits, he will be taken to have consented to in personam jurisdiction. D appears and makes a motion to dismiss for improper venue and for lack of subject-matter jurisdiction. How should D’s motions be decided? 

Multiple Choice Question from the 2004 CivPro Exam

With updated answers

Question 6.

P is suing the D Corp. for disability benefits in the Federal District Court for the Southern District of New York. P has some home movies made by her husband of P lifting their child to help him put a star on the Christmas tree. The movie suggests that P does not have the requisite disability after all. Which of the following is most accurate?

Does the Constitution Apply Extraterritorially?

Got mentioned (with Erwin Chemerinsky no less) in the San Antonio Express-News on the extraterritorial application of the U.S. Constitution in connection with a civil rights action brought against a U.S. border patrol agent who, firing from the U.S., killed a Mexican in Mexico. I think it's actually an easier case than Boumediene v. Bush (the Guanatamo case), in which the Court found that the Suspension Clause applied extraterritorially. After all, Boumediene didn't involve actions by American defendants within the U.S.

 

Multiple Choice from the 2007 CivPro Exam

With updated answer:

5.    In the case of P1 v. D1, P1 (a citizen of New York) sues D1 (a citizen of California) in California state court. P1 has two causes of action: a $100,000 action for D1’s violation of federal securities law and a $10,000 action for D1’s state-law breach of an unrelated contract. In the case of P2 v. D2 and D3, P2 (a citizen of California) sues D2 (a citizen of New York) and D3 (a citizen of New York) in Nevada state court. P2’s action against D2 is for $100,000 in damages due to D2’s negligence in a car accident. P2’s action against D3 is for $10,000 in damages due to D3’s negligence in the same accident. P2’s actions against D2 and D3 are under state law. Assume that all defendants consent to removal. Which is the most accurate description of the causes of action that can be successfully removed to federal court (that is, removed without a subsequent remand to state court)?

Multiple Choice Question from the 2008 CivPro Exam

 With updated answers:

3.         P is suing D in federal court for violations of federal securities fraud. An essential element of P’s cause of action is that P reasonably relied upon D’s misrepresentations. After filing the suit, however, P wrote a letter to a friend, which he forgot to mail and so remains in P’s files, stating that P always knew that D was lying. Which of the following is most accurate?

 

Essay Question from the 2006 CivPro Exam

Essay Question 3. 

D Airlines flight 107 crashed, severely injuring a number of passengers, including P, X and Y. P, X, and Y each hire private investigators to interview witnesses to the crash and to interview D Airline employees who serviced the plane prior to the accident. Before filing suit, X settles with D Airlines. P brings a state-law negligence suit (in diversity) against D Airlines in the Federal District Court for the Southern District of New York. When X hears about P’s suit, X gives P the notes from the witness interviews generated by X’s private detective. Y has not yet brought suit, but when she hears about P’s suit, she too gives to P the notes from witness interviews generated by Y’s private detective. In discovery, D Airlines asks for the material that X and Y gave to P. Is the material covered by the work product privilege and/or should it be?