Multiple Choice Question from the 2007 CivPro Exam

 8.    Assume P sues D in federal court for negligence. Which of the following is least accurate?

a.    D first brings a pre-answer motion to dismiss for inadequate service. The motion is denied. D may not submit a second pre-answer motion to dismiss for failure to state a claim.

b.    D, having introduced the affirmative defense of contributory negligence in his answer, brings a motion for summary judgment, on the ground that no reasonable jury could find that P was not contributorily negligent. If neither P nor D offers the court any evidence in support of or in opposition to D’s motion, the motion should be denied.

c.    D, having introduced the affirmative defense of contributory negligence in his answer, brings a motion for summary judgment, arguing that no reasonable jury could find that P was not contributorily negligent. D may offer in support of his motion an affidavit from X, even though X could not testify at trial because his testimony is hearsay.

d.    If D impleads his insurer I, I may assert D’s affirmative defense of statute of limitations against P.

e.    If D brings a pre-answer motion to dismiss for lack of personal jurisdiction, D may not introduce the defense of improper service in D’s answer.

 

ANSWER

Answer a is not the least accurate. In fact it is correct that D may not submit the second pre-answer motion – since the defense of failure to state a claim was available to him at the time of the first pre-answer motion. (D can introduce the defense of failure to state a claim in his answer, however.) 

Answer b is not the least accurate. In fact it is correct. D has the burden of production and persuasion at trial concerning contributory negligence. That makes this case different from Celotex (which I did not discuss this year in class), where the defendant movant for summary judgment was arguing that a reasonable jury could not find in the plaintiff’s favor concerning an element of the plaintiff’s cause of action (causation). Concerning these elements, the defendant did not have the burden of production and persuasion at trial. Because D has the burden of production and persuasion at trial concerning the affirmative defense, for D to satisfy his burden of production as a movant for summary judgment in this case, he must offer evidence establishing that a reasonable jury could not find in the plaintiff’s favor concerning the affirmative defense. D did not do this, so he does not get summary judgment. 

Answer d is not the least accurate. In fact under Rule 14(a)(2)(C) a third-party defendant (I) “may assert against the plaintiff any defense that the third-party plaintiff [i.e. D] has to the plaintiff’s claim.” 

Answer e is not the least accurate. In fact it is correct that D may not submit the defense of improper service in his answer. It has been waived. See Rule 12(g)-(h). 

Answer c is the least accurate. D may not offer in support of his motion for summary judgment an affidavit from someone who may not testify at trial because his testimony is hearsay. Under Rule 56(e)(1), “[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” It is true that the affidavit itself can be offered in support of the summary judgment motion even though it is inadmissible hearsay. But the content of the affidavit can’t be inadmissible hearsay. 

Comments

[Greg M]

Professor Green,

I understand that answer c is the least accurate. However, I think answer e may be a bit misleading. I believe D may submit the defense of improper service in his answer provided that the defense was not available to him at the time of the pre-answer motion. We are given no information about whether D knew about improper service at the time of his pre-answer motion, so would it not be presumptuous to say that D may not bring the defense at all as the question would imply?

Thank you for posting all of these questions. They have been very helpful in clarifying issues form the course.

[Michael Green]

It is difficult, although not impossible, to think of an example where the defense of improper service was not available to D at the time of his first preanswer motion...