Civil Procedure Simulated MBE Missed Rules

red = original wrong answer; green = correct answer

A tourist from State A was severely injured in a bar fight in State B. The tourist filed a battery action against one of the bar's patrons, seeking $100,000 for his injuries. The defendant patron claims that the tourist is mistaken about who hit him. The patron says that he did not touch the tourist. The patron claims that it was the bar's bouncer-who looks like the patron-who hit the tourist and then continued to pummel him. The bouncer claims that he never touched or harmed the tourist.

Can the patron assert a third-party claim against the bouncer to bring him into the action?

• ANo, because the patron has no legal basis to assert a claim against the bouncer and is not seeking to recover from the bouncer any portion of the patron's liability to the tourist.

• BNo, because the plaintiff is the master of his legal action, and defendants may not bring in new parties against whom the plaintiff has not asserted a claim.

• CYes, because the patron is claiming that the bouncer is liable for the injuries for which the plaintiff is suing the patron.

• DYes, because the patron's claims arise from the same transaction or occurrence as the plaintiff's original claims.

Third party claims may be asserted only to obtain recovery, and that recovery must be for the defendant/third party plaintiff’s own liability to the plaintiff.

A 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 developer's interference caused not only the delay but also substantial cost overruns for the subcontractor.

May the subcontractor assert a claim in the pending action against the developer seeking payment for the cost overruns?

• ANo, because the subcontractor is a third-party defendant and may not assert claims against the original plaintiff.

• BNo, because the subcontractor's claim does not seek indemnity for its liability to the general contractor, so the subcontractor may not assert this claim against the developer as an impleader claim.

• CYes, because the subcontractor and the developer are already parties to the action, and the subcontractor's claim arises from the same transaction or occurrence as the developer's original claim, so the subcontractor will be barred from asserting the claim in an independent action.

• DYes, because the subcontractor's claim against the developer arises from the same transaction or occurrence as the developer's original claim, but the subcontractor may assert the claim in an independent action if it prefers.

A third party defendant may assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence as the plaintiff’s original claim. A third party defendant’s claim is not compulsory.

A homeowner discovered that the siding on his house was defective and had allowed water to enter the structure, causing damage to the wood framing. The homeowner tried for some time to negotiate a settlement with the corporation that the homeowner believed had manufactured the defective siding. When no settlement was forthcoming, the homeowner filed an action in federal district court against the corporation one week before the statute of limitations expired. Service of process was effected on the corporation several months later. After inspecting the home, the corporation filed and served its answer in which it denied manufacturing the siding used on the homeowner's house. Upon examining the corporation's evidence, the homeowner conceded that the siding was manufactured by another company. With leave of the court, the homeowner then filed an amended complaint substituting the actual manufacturer of the siding for the original incorrect defendant. The amended complaint was served on the manufacturer approximately seven months after the original complaint was filed and after the statute of limitations had expired. The manufacturer was unaware of the action until it was served with the amended complaint. The manufacturer filed a motion for summary judgment on the grounds that the homeowner's claim against it is barred by the statute of limitations.

How should the court rule on the motion?

• ADeny the motion, because the homeowner is entitled to recover from the actual manufacturer the damages caused by the defective siding.

• BDeny the motion, because the amended complaint relates back to the time the original complaint was filed, which was before the statute of limitations expired.

• CGrant the motion, because the amended complaint was filed after the statute of limitations expired and the actual manufacturer did not receive timely notice of the action.

• DGrant the motion, because amendments to pleadings may not be used to substitute an entirely new defendant unrelated to the one originally named.

Amendments substituting a new defendant for one originally named are allowed and the amendment will relate back to the time of the original complaint if the claims in the amendment arise from the same transaction or occurrence and within the time allotted for serving the original complaint, 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 have been against it.

A car driver properly sued a truck driver for negligence in federal court for crashing into the driver's car at an intersection. The truck driver had been issued a speeding ticket at the accident scene, after which he had mailed in the citation admitting he was speeding, paid the fine of $100, and never went to court.

At trial, the car driver wants to use the speeding citation as an admission of responsibility for speeding, so as to preclude the truck driver from relitigating whether he was speeding at the time of the accident.

Is the court likely to preclude the truck driver from relitigating the issue?

• AYes, because he admitted to speeding when he paid the citation.

• BYes, because he had the opportunity to go to court and litigate the issue and chose not to.

• CNo, because he did not litigate the issue when he paid the citation.

• DNo, because it is not relevant to the car driver's case.

For issue preclusion to apply, the relevant issue must have been actually litigated and determined in the previous case. Consent judgments and settlements generally do not carry with them preclusive effect. The inquiry is not whether the party had the opportunity to litigate the matter.

A customer slipped and fell in a store, suffering a severe injury. Several weeks after the accident, anticipating that the customer would file an action against it, the store's attorney had the store manager interview any employees who were near the accident to determine what they saw or heard. The store manager did so, taking handwritten notes. The notes are now in the store's possession. The customer subsequently filed a civil action against the store in federal district court. The complaint alleged that the store negligently left a spill on the floor of the store, causing the customer's fall. The customer's attorney served on the store a request for production of documents, which included a request for all documents and reports prepared by the store that relate to the customer's fall and injury.

Must the store produce to the customer the notes taken by the store manager when he interviewed the store's employees?

• AYes, because the request seeks information that is relevant to the claim or defense of a party, and the manager's notes fall squarely within the scope of the request.

• BYes, because the manager's notes were not taken by the store's attorney and thus are not protected by the work product doctrine.

• CNo, because the manager's notes are protected by a qualified immunity from discovery under the work product doctrine.

• DNo, because the manager's notes are completely immune from discovery under the work product doctrine.

Documents prepared in anticipation 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.