....CIV PRO 2
PROBLEM #8
Instruction-Memorandum ...... 2
File:
Pat Plaint’s Complaint ...... 3
Deposition of Plaintiff ...... 4
Interrogatories and Request for Admissions ...... 5
Deli’s Summary Judgment Motion ...... 6
Motion to Strike ...... 7
Trial Testimony: Plaintiff’s Treating Doctor ...... 8
Trial Testimony: Wally Witness ...... 9
Motion for Judgment or New Trial ...... 10
Pat’s Motion for Summary Judgment ...... 10
Library:
Case: Umpty v. Scrunch ...... 11
Rule: FRCP ...... 11
Statutes: California Code of Civil Procedure ...... 11
California Environmental Protection Act ...... 11
Memorandum
Date: Today
To: Junior Associate
Fm: Managing Attorney
Re: Pat Plaint Case File Instructions
------
This project has a dual purpose. For now, it will now help you review your Civil Procedure course. Before you know it, you may again experience that a number of law firms are using this type of exercise to evaluate job applicants—to see not only what they know, but also what they can do.
This file thus contains selected portions of various pleadings and motions, as well as some discovery and trial testimony excerpts. I have also sprinkled in some narrative facts and questions.
I do not have a particular response format in mind. But we do expect you to address the legal issues, applicable rules of law, respective arguments (absent a slam-dunk for either Pat or the Deli/Widgecorp), and any conclusions you reach.
S. Taskmaster
Managing Attorney
Dewey, Cheatem & Howe
FILE
...... San Diego County Superior CourtPat Plaint, Plaintiff )
...... v. )
Dan’s Deli, Does 1-10, and )
Widgecorp, Inc., Defendants ) / COMPLAINT
Personal Injury
Civil #654321
Unlimited Civil Case
Pat, a former New Yorker now attending law school in California, purchased a single Edible Widget at Dan’s Deli in San Diego, CA. After consuming said Widget, and as a result thereof, Pat became ill and was hospitalized for one week. Pat’s medical expenses were $25,000.00.
Edible Widgets are served by Dan’s Deli and made by an Oregon food processor named Widgecorp, Inc. (WC). WC sells its refrigerated Widgets to delis throughout the United States. In addition to this product being dangerous, the defendant’s food handling procedures constitute a danger to the public.
WHEREFORE, plaintiff prays for a judgment ordering the permanent closing of Dan’s Deli and reimbursement for all of plaintiff’s losses caused by the defendants, the total value of which meets the jurisdictional minimum [$25,000.00] of this court......
Facts: WC sold only 1/10th of 1% of its Edible Widgets in California, during the period ranging from five years ago, until two years ago. Dan’s deli, the only one to buy Edible Widgets in California, purchased them in California through a wholesaler. Within the last two years, no WC product has ever been sold in California.
The defendants timely removed this case to the federal court in San Diego. With a view toward establishing their perception—that this is a frivolous suit—the defense lawyer (arguably prematurely) scheduled Pat’s deposition as the first discovery event.
Question #1: If defense counsel believes this is a frivolous suit, what procedure could he use to
test that conclusion?
Question #2: This issue involves personal jurisdiction (IPJ) over WC. Therefore:
(a) first, address California law; then
(b) second, address federal law.
(taken by counsel for defendants)
......
Q: Well, I don’t care what your law school professor said, I’m here to show you what they didn’t
teach you in law school. It’s beginning to look like the Widget you had at Dan’s Deli did have
an impact—strike that, I'm sorry.
A: Yes, you are “sorry.”
Q: Getting back to your background, will you be returning to New York to practice law?
Counsel for the Plaintiff: Objection. Irrelevant—has nothing to do with this case.
Q: You’ve got to be kidding. Tell you what—give me just a few more questions moments and I
think we can wrap this case up, o.k.?
Counsel for the Plaintiff: O.k., but make it short.
Q: Pat, you said that you came from New York to go to law school here?
A: That’s correct.
Q: And do you intend to return there to practice law after you graduate?
A: No—I think I want to practice here first. Then I’ll return home to New York to take the bar
there and practice on a more permanent basis.
Q: But you'll be here first, for a period of time after you graduate from law school?
A: Yes, that’s correct.
Counsel for the Plaintiff: You said that this would be short. Are we done?
Counsel for Ds: Well, there was the matter of her injuries. Just two questions, Ms. Plaint. I understand from your pleadings that you were in the hospital for two weeks?
A: That’s “affirm.” Sorry, been in this Navy town too long. I mean that’s correct.
Q: Please describe any pain or discomfort you had while there.
A: Actually, it wasn’t that bad. Food poisoning is no fun you know. However, this was the
perfect opportunity to catch up on some testing I needed done for some chronic problems
I’ve experienced. Kinda like my 50,000 mile checkup.
Q: Thank you, Ms. Plaint—and I really mean that. Your more than complete answers are much
appreciated. I’d also like to thank your counsel, because your respective levels of preparation
for this deposition have been remarkable!
Question #3: Does the federal court have subject matter jurisdiction (SMJ) to hear Pat’s claim?
More Facts: Assume the court rules that it possesses IPJ and SMJ. Pat and Dan’s Deli then
exchange the following documents:
...... v. )
Dan’s Deli, and )
Widgecorp, Inc., Defendants ) / Civil #123456-S.O.B.
Diversity §1332(a)(1)
PLAINTIFF’S INTERROGATORIES and REQUESTS FOR ADMISSION
FRCP 33 and 36
Please take notice that plaintiff Pat hereby submits the following discovery requests to Dan’s Deli, pursuant to of the Federal Rules of Civil Procedure......
Your responses should be submitted to Pat’s lawyers within thirty days: ...
......
Interrogatories:
1. What information concerning the events in this action has been exchanged between Dan’s Deli and Widgecorp? ......
2. What is the substance of the reports of any experts hired by Dan’s Deli regarding food-pro-cessing requirements? ......
... Request for Admission: ......
Plaintiff requests Dan's Deli to admit that it stopped serving Edible Widgets when Pat allegedly became ill from eating them......
Pat Plaint, Plaintiff )
...... v. )
Dan’s Deli, and )
Widgecorp, Inc., Defendants ) / Civil #123456-S.O.B.
Diversity §1332(a)(1)
DEFENDANT’S OBJECTIONS to PLAINTIFF’S INTERROGATORIES and REQUESTS FOR ADMISSION
FRCP 33 and 36
Dan’s Deli objects to Pat’s discovery requests on the following grounds:
Interrogatories:
Interrogatories 1 and 2 improperly ask for privileged information.
Requests for Admission:
Plaintiff’s Request for Admission calls for responses which would be:
.....(a) irrelevant to the issues; and
..... (b) inadmissible at trial.
Question #4: How should the court rule on Dan’s objections to Pat’s Interrogatories and ...... Requests for Admission?
More Facts: Dan’s Deli then files a motion for summary judgment containing the following document in support of its motion:
Pat Plaint, Plaintiff )...... v. )
Dan’s Deli, and )
Widgecorp, Inc., Defendants ) / Civil #123456-S.O.B.
Diversity §1332(a)(1)
DEFENDANT DELI’s MOTION for SUMMARY JUDGMENT and
SUPPORTING AFFIDAVIT
FRCP 56
Defendant Dan’s Deli hereby gives notice of its Motion for Summary Judgment against Pat Plaint’s complaint in the above-captioned action. It is based on the pleadings, and the following affidavit: ......
AFFIDAVIT:
Wally Witness, being duly sworn, states as follows: ......
I am a law student at TJSL. I live near defendant Dan's Deli, where I frequently go to have lunch. I have been there on numerous occasions before and after the events described in the plaintiff’s complaint......
On ______, I was a patron in Dan’s Deli. My classmate, Pat Plaint, and a companion entered the Deli. They ordered Edible Widgets, and sat at a nearby table. I then overheard Pat say to the companion, with unmistakable clarity, “I’m sick of discussing widgets in our law school classes—I ought to get sick of Edible Widgets so that Dan’s Deli will remove them from the menu. I could make a big splash in legal education if I were the first law student to get sick while attempting to digest a widget. If the Deli refuses to remove Edible Widgets from the menu, I will sue to close the place.”
I, Wally Witness, also overheard Pat’s companion reply “Hey, what a hypo! We could enter the realm of the rich and famous by implementing your devious plot! It makes me randy!” Pat and the companion then looked at me, lowered their voices, and began to write whatever they were discussing in their notebooks.
Wally Witness
______
Wally Witness
Sworn and subscribed to before Jumpin’ Jack Flash, an authorized Notary Public of the County of San Diego. ...
Question #5: Pat’s counter affidavit stated that the remarks Wally overheard were actually said,
but only in jest. Should the court grant the Deli’s motion?
More Facts/Motion: Assume that the court denied the Deli’s summary judgment motion. Pat requested a trial by jury. The defendants filed the following document:
Pat Plaint, Plaintiff )...... v. )
Dan’s Deli, and )
Widgecorp, Inc., Defendants ) / Civil #123456-S.O.B.
Diversity §1332(a)(1)
MOTION TO STRIKE
JURY DEMAND
FRCP 12(f)
Defendants hereby move the court for an order striking the plaintiff’s demand for trial by jury. This is a sham request, for various reasons, including that plaintiff’s case seeks equitable relief.
Question #6:
(a) Regarding Ds’ Motion to Strike, is there a right to jury trial in this case?
(b) Does California or federal procedure govern the timing of the required demand for jury
trial?
Facts/Motion: Assume the court denied the defendant’s motion to strike. The case then proceeded to a trial by jury. During the trial of this action Pat, and Pat’s treating doctor, testified regarding Pat’s contaminated Edible Widgets claim. The defendants then testified regarding their food-handling procedures. Their primary trial evidence was that of Wally Witness—whose testimony was identical to his summary judgment affidavit—and Pat’s treating doctor—as presented below:
...... Trial Testimony of Plaintiff’s Treating Doctor...... (by Pat’s lawyer on direct exam):
Q: Doctor Kevorkian, now that we have established your background and
relationship to this case for the jury, may I just refer to you as “Doctor” in this
afternoon’s proceedings?
A: Yes, of course.
Q: Now, you were saying that you remember the plaintiff, and the details of her
particular condition, when you saw her last year in the hospital?
A: Yes.
Q: How can you be so sure?
A: The elevator music that afternoon was from my favorite band--only time that
ever happened!
Q: Your favorite musicians?
A: Yes, the Grateful Dead.
Q: Was Pat Plaint complaining of pain when you first saw her?
A: Yes.
Q: Please explain.
A: She had symptoms consistent with Ratzaphlatzapackalumer Syndrome.
Q: What’s that?
A: That is the condition exhibited by routine food poisoning patients. [The doctor’s detailed
explanation deleted.]
Q: Did Ms. Plaint have this problem for the whole week that she was in the hospital?
A: Oh, no.
Q: How long, then?
A: That afternoon and evening, with minor irritation on the next morning.
Q: Then it’s obvious that Dan's Deli was responsible?
By Defense Counsel Dirty Dan: Objection, your honor.
The Court: Any particular reason, counsel, or “just because?”
Q: Because, Your Honor, he’s leading his witness. Because, Your Honor, the question calls for speculation. Doctor Kevorkian would not have personal knowledge about where the alleged food poisoning occurred.
The Court: Sustained.
Q: No further questions, Your Honor.
...... Trial Testimony of Wally Witness
...... (by Ds’ lawyer on direct examination):
. . .
Q: “Wally,” may I call you that?
A: Yes, please. Even my friends call me that.
Q: Can you tell the jury what you observed at Dan’s Deli on the day we have been referring to
in this case?
A: On May 1, 20_, I was a patron in Dan’s Deli. My classmate, Pat Plaint, and a
companion entered the Deli. They ordered Edible Widgets, and sat at a nearby table. I
then overheard Pat say to the companion, with unmistakable clarity, “I’m sick of
discussing widgets in our law school classes—I ought to get sick of Edible Widgets so
that Dan's Deli will remove them from the menu. I could make a big splash in legal
education if I were the first law student to get sick while attempting to digest a widget. If
the Deli refuses to remove Edible Widgets from the menu, I will sue to close the place.”
Q: Then what happened?
A: I also overheard Pat’s companion reply “Hey, what a hypo! We could enter the realm of
the rich and famous by implementing your devious plot! It makes me randy!” Pat and the
companion then looked at me, lowered their voices, and began to write whatever they
were discussing in their law school notebooks.
By Ds’ Counsel: No further questions, Your Honor.
The Court: Does Plaintiff’s counsel have any questions for the witness?
By P’s Counsel: Yes, Your Honor, just three.
The Court: You may proceed.
Q: Wally, you’ve testified about what you heard. Did you hear what Pat and Pat’s companion
actually said, after they went back to writing in their law school notebooks?
A: No.
Q: Isn’t it possible that they were just joking about the widget hypo in a humorous context?
A: Well yes, but....
Q: Then you can’t testify whether they were actually discussing something other than their law
school homework?
A: No, but....
Q: No further questions, Your Honor.
Facts: The jury held for Pat and awarded Pat $25,000.00. The defendants timely filed the following document: