CIVIL PROCEDURE EXAM PRACTICE QUESTIONS
Zamoff Fall 2024
Question 1
Recommended Time: 30 minutes
Brad Hachimura and Kyle Kispert are teammates on a (fictional) professional basketball
team called the Minnesota Magicians. The morning after the Magicians lost an
important game, an article written by Dee P. Diggs appeared in The Athletic stating that
“an upset teammate complained off the record in the locker room after the loss that
Brad has been distracted by all the extramarital affairs he has been having with
underage girls.” Brad was furious about the article. He suspected that Kyle was the
source of the statement and sued Kyle for defamation in federal court based on diversity
jurisdiction.
During discovery, the following evidence was collected by the parties:
· Brad testified at his deposition that Kyle had been upset at him for several
weeks prior to Dee’s story because Brad told the coach that Kyle was not playing
well and should be benched. Brad stated that he saw Kyle talking to Dee in the
locker room after the game but admitted he did not hear any statements Kyle
made to Dee that night.
· Brad produced a text exchange he had with Kyle after the article was
published. Brad’s text said: “Why did you make that sh** up in The Athletic?” Kyle
responded: “Whatever dude. Dee has her sources. And you know it’s true.”
· Kyle testified at his deposition that he did not make the statement to Dee.
· Two teammates testified that they saw Kyle talking privately with Dee for
at least ten minutes in the corner of the locker room after the game, but neither
heard what Kyle was saying to Dee.
· A security video taken from a camera just outside the locker room showed
Dee enter the locker room at 9:42 PM and leave the locker room for good at
10:12 PM.
· Dee refused to appear for a deposition to testify about the incident, citing a
reporter’s privilege not to reveal their sources. The court quashed the deposition
subpoena that was served on Dee.
· However, the court required Dee to comply with a subpoena requesting
“all recordings of your discussions with Magicians players” in the locker room on
the night in question. In response to that subpoena, Dee produced an 18-minute
audio file taken from her cell phone. The audio file contained conversations
between Dee and various players, including Kyle. Some of the conversations
were more audible than others due to the background noise in the locker room.
The audio file did not contain any evidence that Kyle made the statement to Dee
that was reported in the article.
Kyle moved for summary judgment on the ground that the evidence adduced during
discovery (which you should assume is limited to the items described above) was
insufficient to show that he was the source of the defamatory statement. Brad opposed
the motion.
What are the strongest arguments in favor of and in opposition to Kyle’s motion? If you
were the judge, how would you rule and why?
Question 2
Recommended Time: 30 minutes
On May 1, 2017, Brick House Construction Company (BHCC) submitted an application
to Plan Safe Insurance Company (PSIC) for an insurance policy that would provide
coverage for BHCC and its officers in connection with any claims made against them
relating to BHCC projects. The application represented that (1) BHCC only worked on
residential properties; (2) BHCC projects did not include fire damage repair work; and
(3) BHCC projects did not include roofing or demolition work. PSIC issued the insurance
policy on May 7, 2017.
On May 23, 2017, BHCC contracted with a company called Dyn-o-Mite Construction
(DMC) to work with BHCC on a commercial construction project which called for the
demolition and replacement of a store roof that had been damaged by fire. On the first
day of the job, one of DMC’s employees, Ruth Falls, was injured when she fell through
a hole in the roof. On July 27, 2017, Falls sued BHCC and Jack Hammer, BHCC’s
President, for damages relating to her injury. BHCC and Hammer sent PSIC notice of
the lawsuit requesting coverage for their defense costs and any liability that might be
imposed on them in the case.
On September 12, 2017, while the Falls lawsuit was pending, PSIC filed a lawsuit in
federal court against BHCC based on diversity jurisdiction seeking to rescind the
insurance policy on the ground that BHCC’s application contained material
misrepresentations (the “PSIC Lawsuit”). The PSIC Lawsuit sought declaratory relief
stating that PSIC had no duty to provide any coverage to BHCC in connection with the
Falls litigation. BHCC timely filed its answer. The court issued a scheduling order setting
February 1, 2018 as the deadline for motions to amend the pleadings. On February 13,
2018, without seeking leave to amend, BHCC filed an amended answer which included
a counterclaim for breach of contract against PSIC. On March 1, 2018, PSIC moved to
dismiss the counterclaim on the ground that it was untimely. On April 12, 2018, the court
granted that motion and dismissed BHCC’s counterclaim with prejudice on the ground
that it was untimely.
Four days later, on April 16, 2018, BHCC and Hammer filed a lawsuit against PSIC in a
different federal court with jurisdiction over the matter. BHCC and Hammer asserted
claims for breach of contract and breach of the duty of good faith and fair dealing based
on PSIC’s failure to provide them with coverage for the Falls lawsuit. Invoking the
doctrines of claim and issue preclusion, PSIC promptly moved for summary judgment
on the basis of the dismissed counterclaim in the PSIC Lawsuit.
Analyze the likelihood that PSIC will prevail on its claim and issue preclusion arguments
with respect to the April 16, 2018 claims asserted by BHCC and Hammer.
